California: The Privette Doctrine Revisited After Nearly Thirty Years: Is It Here to Stay?

Nearly three decades ago our Supreme Court tackled the thorny intersection between workers’ compensation law and tort law when it addressed whether the tort doctrine of “peculiar risk” affords a basis for an employee of an independent contractor who sustains injuries while performing hazardous work to seek recovery of tort damages from the person who hired the independent contractor but did not cause the injuries. In what has become known as the Privette Doctrine, the Court answered that question with a resounding no. (Privette v. Superior Court (Privette) (1993) 5 Cal. 4th 689 [58 Cal. Comp. Cases 420].) In reaching that conclusion, the Court recognized important policy considerations when the actions of the independent contractor cause harm to an innocent bystander versus when the harm is to an employee of the independent contractor.

In the first scenario, the doctrine of peculiar risk allows the fault-free hirer to obtain equitable relief from the responsible independent contractor for damages paid to the injured party. This ensures that ultimate responsibility is borne by the person or entity at fault for the injury. But, when the person injured is an employee of the independent contractor, the exclusivity provisions of workers’ compensation law shield the negligent independent contractor from equitable relief. The Privette court reasoned that it would be manifestly unfair to impose peculiar risk liability on a nonnegligent party who is precluded from obtaining indemnification from the negligent independent contractor because of workers’ compensation exclusivity, especially because a hirer typically hires an independent contractor for the contractor’s expertise and greater ability to perform the contracted work safely and successfully.

Presumptive Delegation

Over the years the Privette Doctrine has come to be understood as a presumptive delegation. That is, when an individual or entity hires an independent contractor, the hirer presumptively delegates all control over the delegated work and the associated tort duties by entrusting the work to the independent contractor. Under this delegated authority it is the responsibility of the independent contractor to ensure the safety of its workers and to determine that the contracted work can be performed safely. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal. 4th 590 [76 Cal. Comp. Cases 728].)

Overcoming the Presumptive Delegation

There are two limited situations, however, in which the presumptive delegation may be overcome. The first is set forth in Hooker v. Department of Transportation (Hooker) (2002) 27 Cal. 4th 198 [67 Cal. Comp. Cases 19], and the second is found in Kinsman v. Unocal Corp. (Kinsman) (2005) 37 Cal. 4th 659 [70 Cal. Comp Cases 1692.] In Hooker, the Court held that a hirer may be liable when it retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the workers’ injury. In Kinsman the Court held that a landowner may be liable for injuries to an independent contractor’s worker if the landowner knew or reasonably should have known of a concealed hazard on the property that the independent contractor did not know of and could not have reasonably discovered and the landowner failed to warn the independent contractor.

Recent Challenges to Privette Doctrine

The Privette Doctrine has been the focus of two recent Supreme Court decisions. The first is Gonzalez v. Mathis (Gonzalez) (August 19, 2021) 12 Cal. 5th 29, 86 Cal. Comp. Cases 767 [2021 Cal LEXIS 5823]. In Gonzalez the question presented to the Court, was whether there should be a third exception to the Privette Doctrine. Specifically, whether a landowner may be liable for injuries to an independent contractor or its workers that results from a known hazard on the property where there were no reasonable safety precautions that could have been taken by the independent contractor to avoid or minimize the hazard. The second case is Sandoval v. Qualcomm, Inc. (Sandoval) (September 9, 2021) 86 Cal. Comp. Cases 787, 2021 Cal. LEXIS 6327. In Sandoval, the employee of an independent contractor claimed that Qualcomm, the hirer and landowner, has tort liability for the catastrophic burn injuries he sustained during an inspection of Qualcomm’s electrical circuitry under either the Hooker or Kinsman exceptions to the Privette Doctrine. In both cases, the Court applied the Privette Doctrine and found no tort liability on the part of the hirer/ landowner. The inescapable conclusion that can be drawn from these two decisions is that the Privette Doctrine continues to reign supreme, and the Court has little appetite to expand it further through any additional exceptions.

The Gonzalez Case

Luis Gonzalez (Gonzalez), a professional window washer, started his own window washing company in the mid 2000s and advertised his business as having specialty in the cleaning of hard-to-reach windows and skylights. His business brochures stated that company employees were trained to exercise care in the cleaning of windows. Prior to establishing his own window cleaning business, Gonzalez was employed by another window cleaning company. That business assigned him to clean a large skylight on the home owned by defendant John R. Mathis (Mathis). The skylight is located on a flat roof consisting of sand and gravel.

In approximately 2007, Mathis began to hire Gonzalez’ business to clean the skylight. A ladder affixed to the side of the house provides access to the roof. To the immediate right of the top of the ladder was a three-foot high parapet wall that runs parallel to the skylight. The parapet wall was constructed by Mathis to hide the air conditioning ducts and pipes from view. Between the edge of the roof and the parapet wall there is a path approximately 20 inches wide. To clean the skylight, Gonzalez would walk on the path between the edge of the roof and the parapet wall, with a long water-fed pole used for cleaning. Gonzalez did not walk in the space between the parapet wall and the skylight because the air ducts and pipes made it difficult to navigate the space.

On August 2, 2012, Gonzalez and his employees were engaged in cleaning Mathis’ skylight. During the cleaning, Mathis’ housekeeper asked Gonzalez to instruct his employees to use less water because water was leaking into the house. Gonzalez went up on the roof to advise his employees as requested by the housekeeper. While walking back to the ladder between the edge of the roof and the parapet wall, Gonzalez slipped and fell, sustaining serious injuries. He did not have workers’ compensation insurance.

Gonzalez sued Mathis for damages claiming that his injuries were caused by dangerous conditions on the roof. Specifically, he claimed that (1) the surface of the roof was slippery with loose pebbles and sand due to lack of maintenance; (2) the roof did not have any tie-off points to attach a safety harness; (3) the roof’s edge did not contain a guardrail or safety wall; (4) the path between the roof’s edge and the parapet wall was unreasonably narrow; and (5) the space between the parapet wall and skylight was inaccessible due to the airducts and pipes. Gonzalez further claimed that months before the accident he had informed Mathis’ housekeeper and accountant that the roof was dangerous and in need of repair.

The trial court granted Mathis’ motion for summary judgment, finding that Mathis owed no duty to Gonzalez under the Privette Doctrine. The Court of Appeal reversed. It acknowledged that ordinarily where there is a known hazard on the hirer’s premises that can be addressed through reasonable safety precautions on the part of the independent contractor, the hirer delegates the responsibility to take such precautions to the independent contractor. However, relying on dicta from Kinsman, the court held that where the known hazard cannot be remedied through reasonable safety precautions, the hirer can be liable to the independent contractor or its employees for injuries sustained through exposure to the known hazard.

The Supreme Court granted review. In an opinion (written by Justice Groban) that eloquently and comprehensively summarizes the Privette Doctrine, its underpinnings and its Hooker/Kinsman exceptions, the Court reversed the appellate court’s judgment. Its decision affirms the presumptive delegation by a landowner to an independent contractor of all responsibility for workplace safety, including the responsibility to determine whether the work can be safely performed despite a known hazard on the premises. Here, Mathis delegated to Gonzalez the duty to provide a safe workplace for Gonzalez’ employees and to perform the cleaning of the skylight in a safe manner. This duty included a duty on the part of Gonzalez to assess whether he and his employees could clean the skylight safely despite the existence of the hazardous conditions on the roof. The Court reasoned that it would contravene Privette to hold that Mathis had a duty to determine whether the skylight could be safely cleaned without remediation of the hazardous conditions on the roof because landowners like Mathis hire independent contractors precisely for their expertise in performing the contracted work. It is that expertise that puts an independent contractor like Gonzalez in a better position to determine whether they can protect their employees against a known hazard on the worksite and whether the contracted work can be safely performed in spite of the known hazard.

The Court also rejected Gonzalez’ claim that Mathis should be found liable for his injuries under the Hooker exception. Gonzalez argued that Mathis retained the sole authority to hire a roofer to repair the slippery, worn roof and exercised that authority in a manner that affirmatively contributed to his fall and injuries by failing to hire a roofing contractor to repair the roof. Hooker, as the Court points out, rejected the notion that a hirer exercises control over an independent contractor’s work in a manner that affirmatively contributes to the independent contractor’s injuries by failing to correct the dangerous condition. Gonzalez testified that he informed both Mathis’ housekeeper and accountant of the need to repair the dangerous conditions on the roof, but that neither Mathis nor his staff promised to repair the roof. Gonzalez also argued that Mathis, through his housekeeper, retained control over the worksite that affirmatively contributed to his injury when Mathis’ housekeeper told Gonzalez to go on the roof and tell the workers that they were using too much water to clean the skylight. This directive, the Court observes, did not interfere with or otherwise impact Gonzalez’ decisions regarding how to safely clean the skylight and how to provide a safe workplace for his employees. The housekeeper did not direct how Gonzalez should gain access to the roof or influence in any manner the decisions he made regarding how to safely cross the roof to reach his employees.

The Sandoval Case

Just three weeks after Gonzalez was released, the Supreme Court issued its decision in Sandoval. Like Gonzalez, Sandoval revisits the Privette Doctrine and its Hooker and Kinsman exceptions. Jose Sandoval (Sandoval), an electrical parts specialist hired by TransPower Testing, Inc. (TransPower), sustained serious burn injuries when he triggered an arc flash from an electrical circuit that he did not know was live during an inspection as part of an electrical upgrade of turbine generators located on the premises of Qualcomm, Inc. (Qualcomm).

Qualcomm’s premises are powered by a local electrical utility and by turbine generators, both of which feed into an electrical switchgear composed of large metal busbars that conduct electricity and circuit breakers. The switchgear equipment is housed in separate cubicles, each of which can be accessed from the front and from the back by removing a bolted on protective cover. From the back, the cubicles look the same.

Qualcomm planned to upgrade its turbine generators and hired TransPower, an electrical engineering service company, to inspect and verify the amperage capacity of the existing switchgear equipment. Although TransPower’s president, Mr. Sharghi (Sharghi), had worked on Qualcomm’s switchgear equipment on a monthly basis for over 20 years, he was unable to locate certain components during the initial inspection, so he hired Sandoval to assist him on a second inspection. For the second inspection, Qualcomm approved the scope of work and authorized TransPower to inspect only the main cogen circuit cubicle from the front and back.

On the morning of the second inspection, the Qualcomm plant operator conducted a safety briefing with Sharghi and TransPower’s employees, including Sandoval. Qualcomm’s plant operator reminded Sharghi and his employees that some of the circuits within the switchgear would remain live during the inspection. Then the plant operator performed a multiple-step power down process to ensure that there would be no live electricity flowing through the main cogen cubicle during the inspection. Upon completion of the power down a voltmeter was used to verify that the busbars in the main cogen were dead. The power down process was observed by Sharghi and TransPower employees to confirm that nothing had been missed and the power down was complete. Qualcomm’s plant operator confirmed that Sharghi was satisfied with the power down of the main cogen circuit and reminded Sharghi that other circuits in what was identified as the “no safe zone” would remain live.

Once Qualcomm completed the power down of the main cogen circuit, a TransPower employee performed a grounding process on the back side of the main cogen cubicle and independently confirmed by voltmeter that the main cogen circuit was dead.

The Qualcomm employees then left the switchgear room and Sharghi instructed a TransPower employee to remove the back panel on an adjacent cubicle that remained live with electricity so that Sharghi could take photographs for a different inspection. Sharghi knew that the cubicle was live.

TransPower employees then began their inspection of the main cogen cubicle through the front side. At some point during the inspection, Sandoval walked around to the back side of the cubicle because he wanted a better view of the busbars. Sandoval was holding a metal tape measure, and as he walked around the back of the cubicles, the metal tape measure triggered an arc flash from the live and exposed adjacent cubicle. Sandoval was unaware that the protective cover had been removed from the live adjacent cubicle. Sandoval suffered serious burns and complications as the result of the fire.

Sandoval brought suit against TransPower and Qualcomm claiming negligence and premises liability. Qualcomm moved for summary judgment, contending that Privette’s presumptive delegation shielded it from all liability for Sandoval’s injuries. The motion for summary judgment was denied because the trial court found a triable issue as to whether or not Qualcomm retained control over its premises and affirmatively contributed to Sandoval’s injuries. Qualcomm also objected to the use of jury instruction CACI 1009B on the basis that it does not adequately set forth the element of affirmative contribution under the Hooker exception. That motion was also denied. The trial court also advised the parties of its intention to instruct the jury that the Kinsman exception did not require Qualcomm to disclose the existence of live electrical circuits to Sandoval. Sandoval then withdrew his premises liability claim against Qualcomm.

Following the trial, the jury returned a special verdict against Qualcomm for Sandoval’s injuries. The jury applied jury instruction CACI 1009B and found that Qualcomm retained control over the safety conditions at the worksite, that Qualcomm negligently exercised that control, and that Qualcomm’s negligence was a substantial factor in causing Sandoval’s injuries. The jury awarded Sandoval over one million in past and future medical expenses and six million in noneconomic damages. Liability was apportioned 46% to Qualcomm, 45% to TransPower and 9% to Sandoval.

Qualcomm moved for judgment notwithstanding the verdict and for a new trial. The trial court granted a new trial on the ground that the jury had improperly apportioned liability, but it denied the motion for judgment notwithstanding the verdict for lack of any triable issue on affirmative contribution. Qualcomm appealed and the Court of Appeal affirmed the trial court’s rulings.

Qualcomm then sought review and the Supreme Court granted review to determine (1) whether the hirer of an independent contractor may be liable to an independent contractor’s employee based only on the hirer’s failure to undertake certain safety measures to protect the independent contractor’s employees; and (2) whether jury instruction CACI 1009B accurately states the law.

In another eloquent, erudite recitation of the Privette Doctrine and its exceptions (authored by Justice Cuellar), the notions of retained control, the exercise of retained control, and affirmative contribution based on the exercise of retained control are carefully examined to determine whether Qualcomm owed a tort duty of care to Sandoval.

From its review of the evidence, the Court easily concluded that Qualcomm turned over control of the worksite and properly disclosed all relevant concealed hazards to TransPower before Sandoval’s injury. As to the disclosure of relevant concealed hazards, the Court observed that the relevant hazard was the presence of live electrical circuits in the switchgear room, and the presence of those live circuits was fully disclosed to TransPower prior to Sandoval’s injury. Qualcomm’s plant operator specifically informed Sharghi as to which circuits were dead (the safe zone) and which circuits remained live (the no safe zone) and confirmed that Sharghi understood the disclosure and was satisfied with the power down. Thus, the Court found that Qualcomm effectively delegated any tort duties it might otherwise have owed to Sandoval with regard to the live circuits under the Kinsman exception.

The Court similarly rejected Sandoval’s argument that because Qualcomm performed the power down of the electrical system, it continued to be responsible for all power related hazards. As the Court noted, this argument might be meritorious if Sandoval had been injured during the power down process. But Sandoval’s injury occurred after completion of the power down and after Sharghi confirmed satisfaction with the power down process and full understanding of the dead circuitry and the circuitry that remained live. Accordingly, once Qualcomm completed the power down and turned over control of the worksite to Sharghi, it presumptively delegated to TransPower any tort duties to ensure safety of the workplace.

Next the Court considered whether substantial evidence supported the jury’s finding that Qualcomm owed Sandoval a tort duty under the retained control exception. The opinion carefully examined the three components of the Hooker exception: retained control, actual exercise of the retained control, and affirmative contribution to the injury. Turning first to the element of retained control, the Court explained that when the hirer retains a sufficient degree of authority over the manner of performance of the work that is entrusted to the independent contractor, it can be said to have met the retained control component. That is, the hirer is able to exercise control over the methods the independent contractor might use to perform the work or limit the independent contractor’s freedom to do the work in the manner the independent contractor prefers. The Court then summarily rejected Sandoval’s theory that Qualcomm necessarily retained control over the worksite because it conducted the power down. As the Court noted, the power down of the main cogen circuit was not part of the contracted work Qualcomm entrusted to TransPower.

Furthermore, the Court found no evidentiary support that Qualcomm actively exercised retained control by not powering down all electrical circuitry during TransPower’s inspection. As the opinion observed, TransPower was fully aware that there would be live circuitry during its inspection, and it was free to accommodate the existence of that live circuitry in the manner it best saw fit. For example, TransPower could have required its employees to wear protective clothing, or it could have erected barriers around the live circuitry, or it could have used signage or other warnings to ensure its worker understood the danger. The Court found no indication in the evidence that Qualcomm’s performance of the power down process somehow induced TransPower not to take any safety measures to protect its employees.

Nor did the Court find any merit to Sandoval’s claim of affirmative contribution to his injuries by Qualcomm’s decision to leave protective covers over the live circuits during the inspection. Although it might be argued that Qualcomm retained control over the protective covers, Qualcomm’s actions did not induce TransPower to remove the protective cover from the cubicle adjacent to the main cogen cubicle. The removal was done at the direction of Sharghi for purposes unrelated to the main cogen inspection. Therefore, Qualcomm did not affirmatively contribute to Sandoval’s injury.

The Court concluded that once Qualcomm completed the power down and turned over control of the worksite to TransPower, it presumptively delegated any tort duties it might have otherwise owed Sandoval. Neither the Kinsman concealed hazard exception, nor the Hooker retained control exception applied. It reversed the Court of Appeal’s decision and remanded the case for entry of a judgment notwithstanding the verdict in Qualcomm’s favor.

As previously mentioned, the Court also granted review to decide whether jury instruction CACI 1009B accurately states the law. Upon its review, the Court concluded that CACI 1009B does not accurately set forth the elements of the Hooker exception and improperly includes an element of the Kinsman exception. It then suggested that the Judicial Council and its Advisory Committee on Civil Jury Instructions revise the instruction consistent with its opinion.

Possible Exceptions for the Future

The Gonzalez and Sandoval decisions are strong indications that the Privette Doctrine and its Hooker and Kinsman exceptions remain as vital today as when they were first announced decades ago. Both decisions express unequivocal agreement with the policy considerations that underly the doctrine and show little interest in any further expansion of Hooker or Kinsman. That being said, Gonzalez does mention several scenarios that might give rise to further exceptions in the future. For example, the Court stated that it is not deciding whether there might be situations in which a hirer’s response to the independent contractor’s notification that the work cannot be performed safely on the worksite might give rise to tort liability where the hirer unduly pressures or coerces the independent contractor to continue the work despite being informed of a hazard the prevents safe work performance. Similarly, the Court acknowledged that its decision does not address landowner liability for known hazards on the premises that are not located on or near the site where the contracted work is being performed. Finally, the Court made clear that its decision does not address a landowner’s liability for hazardous conditions on the premises that the landowner is unaware of and could not have discovered with reasonable diligence. For an easy refresher on everything Privette, Hooker and Kinsman, be sure to bookmark both decisions.

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