Court of Appeal Confirms Privette Doctrine as Applied to Passive Conduct of Property Owner

In Delgadillo v. Television Center, Inc., 2018 No. B270985, the California Court of Appeal examined and refined the Privette doctrine.

Mr. Delgadillo worked as a supervisor/window cleaner for a company named Chamberlin Building Services (CBS). Television Center, Inc. (TCI) purchased an existing building and thereafter contracted with CM Cleaning Solutions, Inc. (CMC) to provide cleaning and janitorial services. CMC, on behalf of TCI, solicited a proposal from CBS to wash the building’s windows. CBS and its employees made all decisions about how the window washing would be accomplished. The window washing equipment used on the job was owned, inspected and maintained by CBS. In violation of CBS’ policy, Mr. Delgadillo, attached a safety line to a single connector which was not an acceptable anchor point. The bracket failed and Mr. Delgadillo fell 50 feet to his death.

Survivors of Mr. Delgadillo filed suit against TCI for negligence and negligence per se, alleging that Mr. Delgadillo was fatally injured because TCI failed to install structural roof anchors, as required by several statutes.

TCI moved for summary judgment, contending that the plaintiffs’ suit was barred by Privette v. Superior Court (1993) 5 Cal.4th 689. The trial court agreed and granted summary judgment. On appeal, the plaintiffs attempted to distinguish their case from SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590 (“SeaBright”) by arguing that because TCI’s statutory duty to install roof anchors was not exclusively based upon Cal-OSHA, but was also based on other statutes (e.g., the California Code of Regulations, Health & Safety Code, Labor Code, and certain municipal code sections), TCI owed a nondelegable duty to plaintiffs, thereby precluding application of Privette. Alternatively, the plaintiff contended there was a triable issue of fact as to TCI’s alleged affirmative contribution to the decedent’s death under McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 because assuming the roof anchors were “equipment,” a jury should decide whether TCI was negligent in providing the unsafe equipment.

Nondelegable Duties

The Court of Appeal disagreed with the plaintiffs and concluded that although the specific regulations at issue in SeaBright arose under Cal-OSHA, “ nothing in the SeaBright analysis or reasoning suggested that the holding is limited to Cal-OSHA ‘statutory or regulatory safety requirements.’” The expansive language of SeaBright indicated that the Supreme Court intended its ruling to extend to all statutory or regulatory safety requirements. Therefore, the Delgadillo court found that, under SeaBright, TCI implicitly delegated to CBS its duties under Cal-OSHA and non-Cal-OSHA statutes to provide a safe workplace for the CBS’ employees, including Mr. Delgadillo.

Negligent Exercise of Retained Control

As to the plaintiffs’ alternative argument, the Delgadillo court concluded that the relevant issue under McKown and subsequent cases was not whether “equipment” caused an employee’s injury, but rather whether the hirer maintained control over the worksite “in a manner that affirmatively contributed to the injury.” The Court re-affirmed the holding in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 214-215 which noted that “passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution.” The Court of Appeal further acknowledged that although TCI arguably “provided” inadequate anchor points for CBS’ employees, it did not suggest or request that CBS use the anchor points to wash the windows. Accordingly, TCI’s mere failure to provide safety equipment did not constitute an “affirmative contribution” or an “affirmative omission” within the meaning of McKown.

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March 14, 2018