General contractor not liable for workplace injury claim of employee of subcontractor premised on negligent coordination of various subs
In Brannan v. Lathrop Construction Associates, Inc. (filed May 21, 2012, certified for publication June 12, 2012) 2012 DJDAR 7743, plaintiff was working for a masonry subcontractor at a school site when he slipped on wet scaffolding and injured his back. He sued defendant, the general contractor, on the theory that defendant negligently sequenced and coordinated the various subs working on the project; in particular, that plaintiff slipped and fell due to the presence of the plastering subs scaffolding, dampened by the rain, interfering with the masonry work. Defendant moved for summary judgment. The Contra Costa Superior Court granted the motion, dismissing the case, based on the Privette-Toland doctrine (Privette v. Superior Court (1993) 5 Cal.App.4th 689), Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253. On appeal, the Court of Appeal, First Appellate District, Division One, affirmed.
The undisputed facts established it was understood that the plastering work would be done first, and the plaster scaffold would be removed before the masonry work started. However the scaffold was left behind at the request of the framing sub who wished to use it; the masonry sub never requested it. The masonry foreman (Garcia) was to make sure the site was safe for the masonry workers; he had the authority to call of the workers, if he saw something unsafe. Garcia observed on the date of the accident that it was raining, but had no safety concern about the wetness or the presence of the scaffolding (he had asked defendant when the scaffold would be removed.) Plaintiff was trying to cross over the scaffold to lay masonry in the area underneath when he stepped onto the second rung of the scaffold believing there was no other way to gain access. He slipped and fell, causing his injury.
The appellate court summarized the Privette-Toland doctrine: that injured employees of independent contractors normally cannot sue the hirer because the employer is implicitly expected to ensure his employees safety and workers' compensation was available should the employee be injured. The exception is found in Hooker v. Department of Transportation (2002) 27 Cal.4th 198: the hirer may be held responsible if it retained control of the work but negligently exercised its control. But merely retaining control over safety conditions is not enough; the hirer must have affirmatively contributed to the employee's injury.