In Alvarez v. Seaside Transportation Services, LLC et al. (No. B275980, filed July 20, 2017), Division Eight of the Second Appellate District affirmed a trial court grant of summary judgment to defendants based on the Privette doctrine.
Plaintiff and appellant, Bernie Alvarez, was injured while working when he drove his maintenance van into a shipping container. At the time of the accident he was employed by Pacific Crane Maintenance Company, who had been hired by Evergreen Container Terminal to perform maintenance work at a marine container terminal. Mr. Alvarez sued Evergreen and two of its contractors for his injuries alleging they were negligent in placing a 45’ trailer in a line stacked with 40’ containers. In response, the defendants sought summary judgment under Privette v. Superior Court (1993) 5 Cal. 4th 689 (Privette).
Under Privette, an independent contractor’s employee generally may not recover tort damages for work-related injuries from the contractor’s hirer. The injured worker’s recovery is limited to workers’ compensation under his employer’s workers’ compensation insurance. Privette and its progeny establish that the hirer of an independent contractor presumptively delegates the duty to the contractor to provide a safe workplace for its employees and to provide for their protection through the workers’ compensation program.
The trial court granted summary judgment in defendants’ favor. On appeal, Alvarez argued he had raised triable issues of material fact as to whether Privette applied in his case, because defendants retained control over safety conditions at the worksite and affirmatively contributed to his injuries.
Under Privette, for an injured worker to recover on a retained control theory the non-employer hirer must actively participate in causing the injury, i.e., by providing some direction for how the work is to be done or by some interference with the means and methods of accomplishing the work. That is, when the hirer does not fully delegate the task of providing a safe working environment, but actively participates in how the job is to be done, the hirer may be held civilly liable to the employee, though workers’ compensation remains the exclusive remedy for the employee against his employer-subcontractor. When the action against the contractor-hirer survives a Privette motion, the workers’ compensation carrier has the right to seek reimbursement from the negligent non-employer parties to the extent permitted by contract between the contractors.
On review, the court found the undisputed facts showed that Alvarez’s employer was responsible for its employees’ safety on the job and that Alvarez did not raise a triable issue of fact by suggesting that either the defendants exercised the power to control the manner of performance of Alvarez’s work or that they tried and failed to undertake any safety measures at the worksite. As plaintiff did not meet his burden on summary judgment the court affirmed the trial court’s grant of summary judgment.
The Privette defenses are commonly seen in construction cases, but as demonstrated here can arise whenever there are subcontractors involved. It is important for contractors to keep in mind the potential exposure to workers’ compensation reimbursement (subrogation actions) when entering into contracts with their subcontractors in part because of uncertainties associated with the court’s interpretation of what extent of contractor action will overcome the Privette defense.
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