Court Slams the Privette Door on Independent Contractor’s Bodily Injury Claim

In Johnson v. The Raytheon Company, Inc., Case No. B281411 (2019) WL 1090217, plaintiff Laurence Johnson (Johnson) was a maintenance engineer employed by an independent contractor that provided control room staff to defendant Raytheon Company, Inc. (“Raytheon”).  Johnson was monitoring the computers in the control room when he received low water level alarms pertaining to the water cooling towers.  Johnson went to the cooling tower wall in order to look over the wall and verify the water level.  Johnson saw the upper half of an extension ladder leaning against the cooling tower’s wall.  The ladder had a warning sign which said, “CAUTION” and “THIS LADDER SECTION IS NOT DESIGNED FOR SEPARATE USE.”  Despite these warnings, Johnson used the ladder.  As he was climbing the ladder it slid out causing him to fall and suffer injuries.

Johnson sued Raytheon, the hirer of the independent contractor, arguing the ladder, among other things, was unsafe and lead to Johnson’s injuries.  Johnson believed that Raytheon’s course of conduct of leaving a platform ladder (as opposed to the extension ladder) at the wall constituted an implied agreement to always have one present, on which the independent contractor’s employees relied.  Johnson further argued that Raytheon was negligent in providing a dangerous extension ladder, as opposed to a platform ladder, at the wall on the night of the accident.

Raytheon filed a motion for summary judgment under the Privette doctrine, which stands for the proposition that, when an employee of an independent contractor is hired to do dangerous work and suffers a work-related injury, the employee cannot recover against the individual (or entity) who retained the independent contractor.

In opposition, Johnson argued that Privette was inapplicable, because his theory of liability against Raytheon was not one of vicarious liability, but direct liability for Raytheon’s own breach of duties owed to Johnson (known as the Hooker exception).  Specifically, Hooker allows for liability when the hirer of the independent contractor retained control over safety conditions at the worksite, and negligently exercised that retained control in a manner which affirmatively contributed to the employee’s injuries.

Johnson also argued that, under another decision called Kinsman, Raytheon would be liable if: (1) it knew, or should have known, of a latent or concealed preexisting hazardous condition on its property; (2) the independent contractor did not know and could not reasonably have discovered the hazardous condition; and (3) the landowner failed to warn the contractor about the condition.

To rebut these exceptions to Privette, Raytheon submitted evidence that Johnson was aware that there were other ladders on the property to access the water tower.  Raytheon also submitted evidence that Johnson had been trained on ladder safety.

The trial court granted Raytheon’s motion and held that Johnson failed to raise a triable issue of fact that any retained control (in terms of providing a platform ladder at the wall) affirmatively contributed to his injuries.

In upholding the trial court’s decision, the appellate court rejected both the Hooker and Kinsman exceptions.  In particular, the Hooker exception was inapplicable because Raytheon pointed out the availability of other ladders, and Raytheon did not represent that the partial extension ladder was a safe replacement for the platform ladder.

The Kinsman exception did not apply because there was undisputed evidence that the hazard could reasonably have been discovered (by inspecting the ladder) and, once discovered, avoided (by getting another ladder).  Specifically, the ladder stated, CAUTION” and “THIS LADDER SECTION IS NOT DESIGNED FOR SEPARATE USE.”

This decision continues a recent trend that has been percolating in the appellate courts of California, which is to reaffirm the Privette rule and limit the so-called exceptions recognized in Hooker and Kinsman.  This case is consistent with other decisions, such as Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, which have reinforced the continuing efficacy and validity of the Privette line of cases.  The decision benefits businesses throughout the state that manage the risk of being sued by employees of their independent contractors.  This is another significant loss for the plaintiff’s bar, which has invested considerable resources litigating these matters in a concerted attempt to augment the exceptions to Privette.

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