Legal Insight: Avoiding the Double-Dip: Application of the Privette-Toland Doctrine Beyond the Construction World

April 30, 2025

As a business or homeowner, there is always a risk of being sued if someone is injured on the job or on your property. The level of liability will depend on the required standard of care you have to the injured person. For example, an invitee will be owed a higher standard of care compared to a trespasser. It gets more complicated when it comes to employees and independent contractors. Employees—people who work directly for the business owner—are likely covered by workers’ compensation insurance if they are injured on the job. The employee cannot then separately sue their employer if they were covered by workers’ compensation. In this case, there is no double-dip by the injured worker. 

However, independent contractors previously had the opportunity to “double-dip” for their injuries. First, they obtained workers’ compensation from their own employer, and then they sued the landowner or business owner for the same incident. This was very common in construction cases dealing with the landowner, general contractor, and subcontractors. A subcontractor would get injured on the job, obtain workers’ compensation, and then sue the general contractor and/or the landowner for the same injuries. From these cases, the Privette-Toland doctrine emerged to avoid the double-dip by creating a rebuttable presumption that the subcontractor could not recover from the general contractor or landowner. This doctrine is now being applied outside the construction world to businesses and homeowners who hire independent contractors. 

The Privette-Toland doctrine comes from the California Supreme Court’s decisions in Privette v. Superior Court (1993) 5 Cal.4th 689 and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, and “stands for the proposition that hirers of a subcontractor are not vicariously liable for injuries to the subcontractor’s own employees.” Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445, 450. Privette-Toland centers on the availability of workers’ compensation insurance. As the Supreme Court observed in Toland, “it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker’s on-the-job injuries, is limited to providing workers’ compensation coverage.” 18 Cal.4th at 267.

Application of Privette-Toland to Businesses

“The Privette line of decisions … establishes that an independent contractor’s hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor’s employees.” SeaBright Ins. Co. v. U.S. Airways (2011) 52 Cal.4th 590, 600. Nevertheless, courts look to whether the landowner or hirer “affirmatively contributed” to the injury to determine if the landowner or hirer is liable. Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 642-644. The following cases illustrate the application of Privette-Toland to businesses. 

A business owner can be liable under Privette if the contractor is required to use, or forced by necessity to use, some particular instrumentality or tool of the owner’s, which then injures the contractor. In Johnson v. Raytheon Co. (2019) 33 Cal.App.5th 617, the plaintiff, an independent contractor, slipped and fell from a ladder in a control room at a Raytheon facility. The plaintiff argued on appeal that Raytheon “created ‘a situation where [the plaintiff] was left with no safe means of performing his work.’” Id. at 631. Raytheon pointed out there were other ladders the plaintiff could have used. Id. The Court of Appeal agreed with Raytheon, noting, “While these arguments go some way to explaining why [the plaintiff] chose to use the partial extension ladder he discovered at the wall, they do not raise a triable issue of fact as to Raytheon’s alleged affirmative contribution to his injury. Raytheon did not represent that the partial extension ladder was a safe replacement for the platform ladder….” Id. at 631. The Court found that Raytheon did not affirmatively contribute to the injuries and applied Privette to find that Raytheon was not liable for the injuries. 

Following Johnson, courts also looked to whether an independent contractor took reasonable steps to inspect a worksite for hazards and take steps to avoid noticeable hazards. In Acosta v. MAS Realty, LLC (2023) 96 Cal.App.5th 635, the appellate court reversed the jury verdict in favor of plaintiff Louis Acosta (“Acosta”), after finding that Acosta conceded that defendants did not exercise any retained control over the work site and that there was undisputed evidence that established that Acosta and his employer could reasonably have ascertained the hazardous condition of the site. Id. at 639. In Acosta, Acosta worked for Horizon Lighting, Inc. (“Horizon”), which was hired by the property management company contracted by defendant MAS Realty, Inc. Acosta went to the roof to replace some lights. As he entered the roof, the hatch that opened to the roof was missing a safety spring and fell on him, causing injury. Id. at 640. He used the fixed ladder to enter the roof, and prior to opening the hatch, he noticed that the ladder was too short, but he still moved forward with opening the hatch. Id. When he opened the hatch he also noticed that it was broken. Id. Upon his dissent, he also noticed a warning sign that the hatch was broken. Id. at 641.

The appellate court found that Privette applied and that Acosta had a duty to inspect the workspace for any hazards, including the access point (i.e., ladder and hatch). Acosta, supra, 96 Cal.App.5th at 662-663 (citing Gonzalez v. Mathis (2021) 12 Cal.5th 29). It reasoned that since Acosta had a duty to inspect, once he noticed that there was an issue with the ladder or hatch, he should have taken the reasonable precautions to avoid injury. Additionally, the appellate court found that Acosta did not present evidence to support that the hazardous condition of the broken hatch and short ladder could not have been reasonably discovered by Horizon (Acosta) upon inspection. Id. at 665. It was clear from Acosta’s testimony that he had a reasonable opportunity to see the warning sign and that it was noticeable that the ladder was too short and that the hatch was somehow defective. These factors squarely place this case within the Privette doctrine. Accordingly, the appellate court reversed and ordered the lower court to enter judgment in favor of the defendants. 

A business owner can also be liable if the owner tells the contractor to perform their work in a particular way, which leads to injuries. In Horne v. Ahern Rentals, Inc. (2020) 50 Cal.App.5th 192, the plaintiff contractor was hired by Ahern Rentals to change tires on a forklift. He was killed when the jacks supporting the forklift failed. The family of the contractor sued Ahern, which in turn moved for summary judgment based on Privette. The trial court granted the motion, and the Court of Appeal affirmed. Id. at 194. In affirming the trial court’s order, the Court of Appeal noted that, even though the contractor used jacks owned by Ahern to assist in lifting the forklift, Ahern did not tell the contractor which jacks to use, and Ahern’s manager—although present—did not give the contractor any instructions about how to do his work. As such, the Court of Appeal held that Ahern did not “affirmatively contribute” to the accident. Id. at 203-204. 

In McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, the Court held that the defendant, Wal-Mart, did affirmatively contribute to the contractor’s injuries. The plaintiff was an employee of an independent contractor hired by Wal-Mart to install sound systems in one of its stores. Wal-Mart requested that the plaintiff use Wal-Mart’s forklifts whenever possible. The forklift Wal-Mart provided to the plaintiff to install wiring in the ceiling consisted of a work platform with a four-foot extension. The extension was supposed to be chained to the forklift and the platform was chained to the forklift, but only one chain was provided by Wal-Mart. While it was being used, the platform hit a ceiling pipe, disengaging the extension, and the plaintiff fell 12 to 15 feet to the floor. Id. at 223. 

Although Wal-Mart was found liable in McKown, that case does not stand for the proposition that a hirer of an independent contractor may be liable for the contractor’s injuries if the hirer merely furnishes the contractor with equipment. Rather, “the relevant issue under McKown and subsequent cases is not whether ‘equipment’ caused an employee’s injury, but rather whether the hirer retained control over the worksite ‘in a manner that affirmatively contributed to the injury.’ [Citation.]” Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1092 (emphasis in original). 

Privette may also apply where a business owner is not in charge of the contractor’s safety. In McKown, Wal-Mart made an affirmative request that its equipment be used. But “affirmative contribution to injury occurs ‘[w]hen the [hirer] directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work…. By contrast, ‘passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution.’” Id. at 1092-1093 (citations omitted; emphasis in original). Similarly, in Tverberg v. Fillner Constr. (2012) 202 Cal.App.4th 1439, 1446, it was established that “[t]he failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures.”

Application of Privette-Toland to Homeowners

As the Supreme Court recently articulated in Gonzalez v. Mathis (2021) 12 Cal.5th 29, 44, “a landowner owes no duty to the contractor or its workers to remedy a known hazard on the premises or take other measures that might provide protection against the hazard.” In Gonzalez, the plaintiff advertised that his window-washing company specialized in high and hard-to-reach windows and skylights, and that he trained his employees to take extra precautions. Id. at 39. To get to defendant’s skylight, plaintiff had to climb a ladder affixed to the house and then walk along a 20-inch space between a parapet wall and the edge of the roof. Id. On the day of the accident, defendant’s housekeeper told plaintiff to go up to the roof and tell his employees to use less water since it was leaking into the house. While walking between the parapet wall and edge of the roof, plaintiff fell to the ground. Id. at 39-40.

Plaintiff sued defendant claiming (1) defendant’s lack of maintenance caused the roof to have a very slippery surface since it was made up of “loose rocks, pebbles, and sand”; (2) the roof contained no tie-off points from which to attach a safety harness; (3) the roof’s edge did not contain a guardrail or safety wall; and (4) the path between the parapet wall and the roof’s edge was unreasonably narrow, and plaintiff could not fit between the parapet wall and the skylight due to obstructing fixtures. Id. at 40.

The appellate court determined that the Privette doctrine applied and affirmed that it was not the duty of defendant to take the proper safety precautions when that duty belonged to the hired independent contractor. Id. at 57. The hazards were also visible to plaintiff and he could have taken additional safety measures to protect himself from injury. Id. The court reasoned that defendant did not control how plaintiff performed his job or what he used to perform the window washing and thus did not “affirmatively contribute” to the injuries. 

Exceptions to Privette-Toland

Known Dangers

When a landowner hires an independent contractor, the landowner delegates responsibility for supervising the job, including responsibility for the contractor’s employees’ safety, to the contractor. Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 673. “Thus, when there is a known safety hazard on a hirer’s premises that can be addressed through reasonable safety precautions on the part of the independent contractor, a corollary of Privette and its progeny is that the hirer generally delegates the responsibility to take such precautions to the contractor, and is not liable to the contractor’s employee if the contractor fails to do so.” Id. at 673-674.

However, as a landowner, the hirer of an independent contractor “may be independently liable to the contractor’s employee, even if it does not retain control over the work, if: (1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” Kinsman, supra, 37 Cal.4th at 675 (fn. omitted). This exception to Privette does not apply, however, where the hazard was created by the independent contractor or is something the contractor is or should have been aware of. Id., fn. 3 (citing Zamudio, supra, 70 Cal.App.4th at 455).

The rule of Kinsman, supra, 37 Cal.4th 659, “applies only to situations in which an independent contractor could not be reasonably expected to ascertain or discover a hidden danger.” Gonzalez, supra, 12 Cal.5th 29, 44. Thus, where there is a hazard on the property known to the independent contractor, the landowner owes the contractor no duty to remedy the hazard or take measures to protect against the hazard—even if the hazard cannot be readily addressed by the contractor. Id. at 45. The public policy behind this is two-fold. First, the contractor is hired for their expertise, and the hirer generally has no right to interfere with the contractor’s safety decisions. Id. at 45-46. Second, holding a landowner responsible for remedying a hazard known to the contractor would subject the landowner to liability, but not general contractors or other non-landowner hirers under similar circumstances. Id. at 49-50.

Florez v. Groom Development Co. (1959) 53 Cal.2d 347 demonstrates the point. In that case, the plaintiff needed to obtain water to mix a new batch of paste for use in sheet rock finishing, but the only water faucet available in the vicinity was accessible only by a wooden plank placed over a ditch. As he crossed the plank, it gave way, and the plaintiff fell into the ditch. Id. at 351-352. The Court of Appeal disagreed that the plaintiff was contributorily negligent, noting, “[i]t is also the law that a workman on the job, doing the job he was hired to do, is not required to exercise the same quantum of care that may be required of other invitees.” Id. at 358. However, the Court of Appeal observed, “It must not be forgotten that [the plaintiff’s] duties as an employee required him, in the course of his employment, to use water, and, so far as he knew, the faucet in question was the only place where water was available. The dangerous plank was the only means furnished to reach that faucet.” Id. In this case, the defendant was responsible for warning plaintiff about the plank and maintaining a safe method to access the water. There was no way for the plaintiff to protect against this danger. 

In comparison, in Blaylock v. DMP 250 Newport Center, LLC (2023) 92 Cal.App.5th 863, the appellate court did not find that the hazardous danger exception applied. In Blaylock, the plaintiff, Travis Blaylock, worked for a company, ACS, that was hired to service a HVAC unit for DMP 250 Newport Center, LLC. During the job, he fell through an access panel and was injured. Multiple employees of ACS were present in the crawlspace leading to the HVAC unit, and the trial court did find that they had a duty to inspect the premises for hazards and there was no evidence presented that such an inspection occurred. Id. at 873. The trial court granted summary judgment, and the appellate court affirmed that while it was a triable issue of fact whether DMP knew of the existence of the access panel, there was no evidence presented that would suggest DMP knew or should have known that the access panel was a hazard to Blaylock or his employer, and no evidence presented that Blaylock or his employer could not have reasonably ascertained the hazard. Id. at 874. Accordingly, the court applied the Privette-Toland doctrine absolving DMP of liability.

Unlicensed Workers

Business owners and homeowners alike should also ensure that if a particular job requires a construction license (such as a contractor’s license), the contractor actually possesses a valid license to do the work. Labor Code section 2750.5 provides that if an individual is performing work for which a construction license is required, but the individual does not have the requisite license, then the individual is presumptively an employee of the hirer. Failing to confirm that the contractor is properly licensed could result in a hirer being liable for the contractor’s injuries because Privette would not apply in the first place.

Conclusion

The application of the Privette-Toland doctrine is continuing to expand. It protects businesses and homeowners from liability for injuries that are not their fault. It should be expected that when independent contractors are hired, they are equipped with the expertise and tools to create a safe work environment even outside the world of construction. As a public policy matter, businesses and laypersons should not be expected to take on the risk of liability when hiring professionals. After all, the purpose of hiring an independent contractor is to ensure that the job is done correctly by a professional. Businesses and laypersons will be deterred from hiring independent contractors if it means they could be hit with a seven-figure judgment if that person was injured doing the job they were hired to do.