Privette <\/em>doctrine which limits a hirer\u2019s liability for on-the-job injuries sustained by an independent contractor or its workers.<\/p>\nThe Bowen Case<\/h3>\n
Eugene Bowen was an employee of second-tier subcontractor Team Industrial Services, Inc. (\u201cTeam\u201d) who was hired by subcontractor HMT, LLC to inspect welding in a jet fuel tank whose floor was being replaced at the San Francisco International Airport. HMT had in turn been hired by general contractor Burns & McDonnell Engineering Company to replace the flooring in the jet fuel tank.<\/p>\n
HMT\u2019s subcontract with Team required that Team \u201cfurnish all material, equipment, and labor necessary to perform the work.\u201d<\/p>\n
Bowen\u2019s job in all of this was to capture radiographic images of the wall sheets to examine the door welds. Prior to the \u201cincident,\u201d Bowen had worked inside the jet fuel tank on two separate occasions in February 2017. On February 15, 2017, Bowen entered into the tank a third time while another Team employee, Tom Polkinghorn, worked outside of the tank.<\/p>\n
Before beginning work, both Bowen and Polkinghorn signed a \u201cJob Safety Analysis\u201d form in which they were supposed to identify hazards they observed both outside and inside the tank. The form also included disclaimer stating that the person signing the form should stop work \u201cif conditions change and\/or the job becomes unsafe.\u201d Polkinghorn inspected the outside of the tank and identified hazards on the form. Bown was supposed to inspect the inside of the tank, but Polkinghorn is unsure if Bowen ever did. Bowen signed the form without exceptions.<\/p>\n
While performing work inside the tank, Bowen observed a ladder and scaffolding which HMT had installed for HMT\u2019s employee to use. Bowen did not notice a \u201cgreen work permit\u201d on the scaffolding that would have indicated that the scaffolding was built and ready for use. (Don\u2019t do it Eugene!) Bowen also noticed that the ladder was \u201cjust tied off at one side at the very top,\u201d that he had never seen a ladder tied off in this manner, and he did not shake or test the ladder. (Don\u2019t do it Eugene!)<\/p>\n
Nonetheless, Bowen decided to use the ladder to capture images from a higher elevation. Bowen was wearing a harness and clipped himself to the ladder and scaffolding. According to Bowen, the ladder \u201cfelt good going up,\u201d but on his descent, after releasing the lanyard, \u201cthe ladder came out from underneath.\u201d Bowen was about four feet from the floor when he fell. He fractured his hip and sustained other injuries as a result of the fall.<\/p>\n
Bowen attributed the fall to the flexible metal floor at the bottom of the fuel tank and sand on the floor. The floor, which was comprised of pieces of metal welded together, would \u201craise up and down like a waterbed,\u201d \u201cflex\u201d and \u201cpop and move.\u201d Bowen did not notice the sand on the floor before ascending the ladder.<\/p>\n
Bowen received workers\u2019 compensation benefits through Team. He also filed a lawsuit against HMT and Burns for premises liability, alleging that they negligently owned, maintained, and operated premises with dangerous conditions that caused his injuries, including a ladder that was not properly secured to the scaffolding, an unbalanced floor, and debris on the floor.<\/p>\n
HMT and Burns each filed nearly identical motions for summary judgment arguing that under the Privette Doctrine they owed no duty of care to Bowen, that any duty of care was delegated to Team, and that an exception to the general duty of care existed when a danger was open and obvious.<\/p>\n
In his opposition, Bowen argued that there were triable issues of material fact, namely, that it was not within the scope of his responsibility to inspect the scaffolding, ladder, or floor which were each concealed unsafe conditions, that there were triable issues of material fact as to whether HMT and Burns actively contributed to his injury when the scaffolding and ladder were installed by HMT, and that HMT and Burns retained control over the safety of the ladder and floors in the tank, failed to warn Bowen of the flexible nature of the steel floor, and represented to Bowen and Team that the ladder tied to the scaffolding was safe.<\/p>\n
The trial court granted HMT and Burns\u2019 motion for summary judgment finding that Burns did not own, install, or tag the scaffolding or ladder and did not direct or control the means by which work was to be performed by Team. As to HMT, the trial court found that HMT\u2019s contract with Team required that Team \u201cfurnish all material, equipment, and labor necessary to perform the work\u201d and that HMT installed the scaffolding and later for its own work and not that of Team.<\/p>\n
Bowen appealed.<\/p>\n
The Court of Appeal<\/h3>\n
On appeal before the First District Court of Appeals, Bowen argued that the case fell within an exception to the Privette <\/em>doctrine known as the Hooker <\/em>exception, whereby a hirer can be liable for on-the-job injuries sustained by an independent contractor or its workers if the hirer exercises retained control over any part of the contractor\u2019s work in a manner that affirmatively contributes to the worker\u2019s injuries.<\/p>\nHowever, as noted by the Court of Appeal, the Hooker<\/em> exception, also known as the \u201cretained control\u201d exception to the Privette<\/em> doctrine, does not impose liability on a hirer who \u201cpassively permit[s] an unsafe condition to occur,\u201d but rather, required the hirer to have \u201caffirmative[ly] contribut[ed]\u201d to the unsafe condition:<\/p>\n\nRather, for the retained control exception to apply, there must be something more\u2014i.e., some indication the hirer directed<\/i> that the contractor perform its work in a certain way or interfered<\/i> with the means and methods by which the work was to be accomplished. For example, in McKown,<\/i> the California Supreme Court imposed liability on a hirer who requested that an independent contractor use the hirer\u2019s own defective forklift in performing the contractor\u2019s work. Additionally, in some instances, an \u201comission may constitute an affirmative contribution,\u201d such as where a hirer promises to undertake a particular safety measure and negligently fails to do so.<\/p>\n<\/blockquote>\n
On appeal, Bowen argued that HMT \u201cfailed to meet its burden on summary judgment to show that there was no triable issue of material fact\u201d regarding HMT\u2019s retention of control over safety conditions\u201d and, further, that \u00a0HMT \u201ceffectively\u201d retained control because it was contractually responsible for the safety of its subcontractors and negligently set up a ladder and scaffolding for use by Bowen.<\/p>\n
But, stated the Court of Appeal, \u201cthese arguments erroneously place the burden on HMT to demonstrate the lack<\/i> of a triable issue of material fact when . . . it is Bowen\u2019s burden to raise a triable issue of fact as to an exception to the Privette <\/i>doctrine once defendants demonstrate the applicability of that doctrine.\u201d In other words, Bowen had a duty to show that HMT (and Burns) were liable because they retained control over the job site and affirmatively contributed to the unsafe conditions which caused Bowen\u2019s injuries, it was not HMT\u2019s (or Burns) duty to show that they did not retain control over the job site and did not actively contribute to unsafe conditions which caused Bowen\u2019s injuries.<\/p>\n
Thus, held the Court of Appeal:<\/p>\n
\nBowen fails to meet this burden as he does not dispute the facts underlying the trial court\u2019s ruling and still points to no<\/i> evidence indicating that defendants affirmatively contributed to his injuries. For example, apart from arguing that HMT \u201cnegligently\u201d set up the ladder, Bowen does not present any evidence that HMT directed that he perform his work in a certain way or that it interfered with the means by which he was to accomplish his work. Further, the evidence indicates that HMT did not require Bowen to use the ladder or scaffolding, and that prior to entering the fuel tank Bowen knowingly executed a JSA that listed hazards observed at the worksite and authorized him to stop work if he deemed the site or circumstances unsafe. Lastly, with respect to Bowen\u2019s argument regarding HMT\u2019s contractual responsibility for the safety of its subcontractors, Hooker<\/i> established that this type of contractual obligation does not implicate the retained control exception where there is no evidence the hirer affirmatively contributed<\/i> to the worker\u2019s injuries.<\/p>\n<\/blockquote>\n
The Court of Appeal also took issue with Bowen\u2019s contention that HMT\u2019s use of a safety tag system for its own scaffolding (Note:<\/strong> Apparently, there was a \u201cgreen work permit\u201d on the scaffolding, but recall, that Bowen did not notice a \u201cgreen work permit\u201d on the scaffolding when he climbed the ladder) was tantamount to a request that Team use HMT\u2019s equipment. \u201cA conclusion to the contrary,\u201d held the Court, \u201cwould stretch the concept of a \u2018request\u2019 beyond absurdity.<\/p>\nConclusion<\/h3>\n
So there you have it. Don\u2019t climb a ladder \u2013 particularly a suspect one \u2013 just because it\u2019s there. And if you do, don\u2019t blame the person who left the ladder there.<\/p>\n
For those of you versed in the law, you may have heard of the \u201cattractive nuisance\u201d doctrine, and this decision may seem contrary to that doctrine. Under the attractive nuisance doctrine, a property owner can be held liable for injuries to children caused by attractive nuisances on their property (think the empty pools used by skateboarders).<\/p>\n
The attractive nuisance doctrine was abolished in California in 1970 in the case Beard v. Atchison, Topeka & Santa Fe Railway Company<\/em><\/a>, 4 Cal.App.3d 129 (1970). In it\u2019s place, however, remains a general common law obligation of property owners to keep their property in a safe condition, whether as to children, or adults.<\/p>\nThe difference here is between the relationship of the parties. Rather than a general common law obligation by property owners to keep their property in safe condition as to the public in general, the Privette<\/em> doctrine is grounded in the contractual relationship between hirers and those hired to perform work on property, and the notion that those hired to perform work on property have the skills and experience to safely perform that work.<\/p>\n\t\n\t\t\t\t<\/div>\n