The Court of Appeal of the State of California – Second Appellate District in Khosh v. Staples Construction Company, Inc. (10/26/16 – Case No. B268937) affirmed the trial court’s granting of summary judgment in favor of the defendant under the Privette doctrine where plaintiff presented no evidence that the defendant affirmatively contributed to his injuries.
Plaintiff Al Khosh (“Khosh”) was injured while performing electrical work on a project. He was employed by Myers Power Products, Inc. (“Myers”) a subcontractor for the project. Khosh sued the general contractor, Staples Construction Company, Inc. (“Staples”) to recover damages for his injuries.
Myers informed Staples it needed a complete shutdown of the electrical system to perform its work on the project. Khosh arrived two and a half hours prior to the scheduled shutdown and began performing work while the system was still energized. An electrical arc flash occurred, severely injuring him. Staples did not have any personnel on site at the time of Khosh’s injury.
Khosh filed a complaint asserting a cause of action for general negligence against Staples. Staples moved for summary judgment relying upon the Privette doctrine, which generally prohibits the employee of a contractor from suing the hirer of that contractor for work-related injuries. Under Privette, an employee is generally limited to workers’ compensation remedies against his or her employer for any injuries he or she sustains on the job. Staples’s summary judgment motion was granted by the trial court.
On appeal, Khosh argued Privette did not bar his claim because (1) Staples retained control over his work; and (2) Staples violated nondelegable regulatory duties because it did not have a qualified supervisor on site and did not prepare a written procedure for the electrical shutdown.
To recover under a “retained control” exception to the Privette doctrine, a worker must show the hirer engaged in some active participation. The Appellate Court found Staples did not directly or actively participate in Khosh or Myers’s work at the project. Further, the Court found no evidence of an act by Staples which affirmatively contributed to Khosh’s injury.
The Appellate Court also disagreed with Khosh’s argument that Staples owed a nondelegable duty pursuant to various safety regulations. According to the Court, the hirer of an independent contractor presumptively delegates to that contractor the duty to provide a safe workplace for the contractor’s employees, including any duty to comply with statutory or regulatory safety requirements.
The Khosh opinion further upholds the Privette doctrine as the general rule that the employee of an independent contractor cannot recover from the contractor’s hirer for tort damages for work-related injuries. Absent a showing that a contractor’s hirer affirmatively contributed to an incident, workers’ compensation remains the exclusive remedy for an injured employee of a subcontractor.
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