Modification: Exceptions to Privette Doctrine Do Not Apply Where There is No Evidence a General Contractor Affirmatively Contributed to the Injuries of an Independent Contractor’s Employee

In a case which was the subject of our Alert dated October 31, 2016 (click here for prior alert), the Court of Appeal of the State of California – Second Appellate District on November 17, 2016 issued a modification to the opinion in Khosh v. Staples Construction Company, Inc. (10/26/16 – Case No. B268937) with no change in judgment. In Khosh, the Court 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”), a subcontractor’s employee, was injured while performing electrical work on a project. He then sued the general contractor, Staples Construction Company, Inc. (“Staples”) for general negligence to recover damages for his injuries.

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.

The Appellate Court found Staples did not directly or actively participate in either Khosh’s or his employer’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 held 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.

In his opposition to Staples’s motion for summary judgment, Khosh had contended the trial court erred in sustaining Staples’s objections to evidence filed in support of his opposition. Khosh had submitted an expert declaration and a number of exhibits with his opposition which the trial court ruled lacked foundation, were argumentative, and were not properly authenticated. In its modification, the Court removed a sentence from the opinion stating a judgment may not be reversed due to the erroneous exclusion of evidence unless the court finds that the error resulted in a miscarriage of justice. This modification had no effect on the gravamen of the opinion or on the judgment rendered by the Court.

Accordingly, the modification to the Khosh opinion has no bearing on the Court’s upholding of 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.

This document is intended to provide you with information about general liability law related developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.

November 21, 2016