Legal Insight: Privette, Hooker, and the Retained-Control Theory of Hirers’ Personal Injury Liability

In the case of Degala v. John Stewart Co. (2023) 88 Cal.App.5th 158, the California Court of Appeal, First District, found triable issues of material fact where, in a personal injury action brought by a construction worker against the owner and general contractor of the project in question, the latter two parties retained some level of control over site security.

In January 2017, a demolition subcontractor’s worker (hereinafter “Plaintiff”) was attacked by several unknown assailants while working at a construction site. The worker subsequently brought a personal injury action against the owner and general contractor of the project (hereinafter collectively “Defendants”), seeking damages for his injuries and alleging that Defendants breached their duty to take reasonable security precautions at the construction site. The trial court granted summary judgment to Defendants, which Plaintiff appealed. Upon review, the appellate court reversed and remanded, holding that fact issues existed as to whether: (1) Defendants retained control over site security; (2) Defendants retained control over the subcontractor’s work; (3) Defendants actually exercised that control; (4) Defendants’ alleged negligent exercise of retained control over site security affirmatively contributed to Plaintiff’s harm suffered; (4) Defendants’ site security measures were reasonable; and (5) whether (or to what extent) the alleged unreasonableness of Defendants’ site security measures contributed to Plaintiff’s injuries.

The Court focused its discussion on the doctrine established by the Supreme Court of California in Privette v. Superior Court (1993) 5 Cal.4th 689 (the “Privette doctrine”) and the exception thereto outlined in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 201–202 (the “Hooker exception”). Under Privette, the hirer of an independent contractor is not liable for on-the-job injuries sustained by the contractor’s employees unless some exception applies. (Degala, 88 Cal.App.5th 158, 162.) Under Hooker, such an exception applies when the hirer “retains control over any part of the contractor’s work and exercises that control in a way that affirmatively contributes to the plaintiff’s injury.” (Id.) In the context of construction site security, “[i]f a hirer entrusts work to an independent contractor, but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.” (Id. at 166 (internal quotations and citation omitted).)

A party moving for summary judgment on Privette grounds may “establish[] that it hired an independent contractor to perform certain work, and that the plaintiff is an employee of the contractor who was injured in the course of the work . . . .” (Id. at 167 (internal citation omitted).) To withstand summary judgment, an opposing party must “come forward with evidence raising a triable issue of fact as to whether an exception to the Privette doctrine applies,” and the evidence proffered in support must be admissible. (Id. (internal citations omitted).)

Here, the Court found that Defendants met their initial burden, shifting the burden of production to Plaintiff to demonstrate that an exception to Privette applied. (Id. at 167–68.) Recognized exceptions include those where delegation is either “ineffective or incomplete,” with the exception for incomplete delegation at issue in this case. (Id. at 165 (internal quotations and citation omitted, emphasis in original).) Evaluating the retained-control theory of incomplete delegation espoused in Hooker, the Court noted that a hirer retains control where it “retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor,” and “actually exercises” that control when it “involves itself in the contracted work such that the contractor is not entirely free to do the work in the contractor’s own manner.” (Id. at 168 (internal quotations and citations omitted).) Such an exercise affirmatively contributes to a plaintiff’s injury if it does so “independently of the contractor’s contribution (if any) to the injury.” (Id. (internal quotations and citation omitted).) Notably, neither actual exercise nor affirmative contribution need constitute an affirmative act by the hirer, but may take the form of a failure to perform as promised. (See Id.)

Analyzing the facts of the case at hand, the Court found that Plaintiff had produced adequate evidence of retained control in the form of written contracts that excluded site security from the subcontractor’s scope of work and retained for the owner the power to direct how site security was set up. (Id. at 169.) The Court also pointed to certain actions by Defendants that demonstrated retained control, such as their “jointly decid[ing] on the appropriate amount of site security” and implementing security measures after the attack on Plaintiff (subsequent remedial measures that were nevertheless admissible and relevant to show that Defendants retained control over site security). (Id.) Defendants actually exercised that control by, for example, “having weekly discussions about site security because of ongoing concerns about the safety of property and people at the site, and implementing different measures to protect property and people in response to incidents in the neighborhood.” (Id.) Said measures included “elimination of overtime, . . . instructions to stop work before sundown and stay indoors for lunch and breaks, . . . occasional closures of the site, and . . . configurations of the fences around the site where [Plaintiff] worked.” (Id. at 169–70.) Defendants evidently “undertook the responsibility of taking reasonable precautions and providing reasonable protection to prevent injury to subcontractors’ employees arising from authorized access to the . . . worksite,” and the subcontractor evidently “did not have obligations for site security.” (Id. at 170.) The Court emphasized that this was “not a case where [Defendants] passively permitted an unsafe condition to exist,” but rather one where there was “ample evidence that [Defendants] took affirmative steps to address the dangers posed to workers in an area known to have a high rate of crime.” (Id.)

Ultimately, the Court found the alleged reasonableness or unreasonableness of Defendants’ measures at issue here, and whether they contributed to Plaintiff’s injuries, to be questions of fact for a jury to resolve. (Id. at 171.) As these issues could not be resolved as a matter of law based on the record at the time, the Court found summary judgment to have been erroneously granted. (Id.) Accordingly, the Court reversed the trial court’s judgments and remanded the matter for further proceedings consistent with the appellate opinion, with Plaintiff to recover his costs on appeal. (Id.)

As demonstrated in Degala, the Privette doctrine (and Hooker exception thereto) remains strong law in California and highlights the importance of clearly delineating and apportioning responsibility for job site security among construction project owners and contractors. Eliminating ambiguity in such provisions would promote worker safety, clarify contracting parties’ obligations to one another, and effectively neutralize disputes before they escalate to litigation. Practitioners of premises liability law (especially those who handle construction matters) would do well to have a working knowledge of the seminal cases discussed in this article.