In Tverberg, et al. v. Fillner Construction, Inc., No. A120050, filed 1/26/12 (Tverberg III), the Court of Appeal reversed a trial court's order granting summary judgment in favor of defendant general contractor because the plaintiff raised a triable issue as to whether defendant retained control of project safety. (A previous Case Alert discussed the Court of Appeal’s prior holding that a hirer may be directly liable for an independent contractor’s injury.)
A project subcontractor retained plaintiff as an independent contractor to construct a metal canopy over fuel-pumping units. Defendant general contractor hired another subcontractor to construct concrete barricade posts adjacent to the canopy. Before plaintiff began work on the jobsite, eight holes were excavated for the posts. Plaintiff was injured when he fell into one of the holes.
The Court held plaintiff raised triable issues as to whether defendant (1) directed digging of the hole into which plaintiff fell and directed Tverberg to work near it; (2) determined there was no need to cover/barricade the holes; and (3) failed to cover them upon plaintiff's request. Based on such evidence, the court concluded Plaintiff established triable issues as to plaintiff's retained control theory.
Tverberg III demonstrates that general contractors who retain even limited control over safety conditions must be prepared to confront the potential exposure created by doing so. As such, it is critical for such contractors to be vigilant about identifying potential hazards and, where possible, implementing measures to effectively manage such risks.
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