Control Issues

On January 31, 2023, California’s First Appellate District published Delgala v. John Stewart Company, et al. 2023 WL 1792984, an opinion concerning the seminal case of Privette v. Superior Court (1993) 5 Cal.4th 689. In Privette, the California Supreme Court held that when injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of a contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk does not apply to an employee seeking to recover of tort damages from the person who hired the contractor but did not cause the injuries. Subsequent decisions by the Supreme Court and the Courts of Appeal have created exceptions to that general rule.  

In this recent case, Abraham Delagala, the injured employee, alleged that such an exception applied to him. His case contains a good discussion of the rules to apply in determining whether any particular case is excepted from the general rule set forth in Privette.  

Factual Background 

Delgala was attacked and seriously injured by unknown assailants while working at a construction project in San Francisco. The project involved the rehabilitation of 27 buildings containing residential units. John Stewart Company (JSC) was the general partner of the limited partnership that owned the property. JSC hired Cahill Contractors, Inc. (Cahill) as the general contractor. Cahill, in turn hired Janus Corporation (Janus) as a subcontractor. Degala was an employee of Janus, and one of its foremen. The project was located in a known “high crime” area of the city.  

The contract between JSC and Cahill required Cahill to “take reasonable precautions for the safety of, and…provide reasonable protection to prevent damage, injury or loss to… employees on the work and other persons who may be affected thereby.” The subcontract between Cahill and Janus provided that Janus’s scope of work excluded “[s]ite security.”  

JSC and Cahill had weekly discussions about site security because of ongoing concerns about the safety of property and people at the site and jointly made decisions as to the appropriate amount of site security. Cahill initially hired uniformed security guards at the site during the day to discourage theft, but their services were discontinued in favor of a video voice system. That system included cameras that were monitored offsite and the capability of communicating with people at the project site if motion sensors were activated. The cameras, however, were not monitored during working hours.  

Cahill erected fencing around the areas where work was being performed to keep non-construction workers out of the job site during the day and to secure the site during non-working hours. The fencing was provided for the security of property, tools, and personnel. The opinion cites to a litany of security concerns and incidence of violence in the area, including shootings. Both Delgala and another subcontractor’s foreman notified Cahill in writing that the neighborhood surrounding the site was dangerous.  

Degala was attacked in January of 2017 while he was leading a crew performing work on two of the buildings. Each of the buildings where Degala was working was surrounded by a fence, but there was an unfenced walkway between the buildings, which was used by neighborhood residents. Delgala was attacked in that walkway. As an employee of Janus, Degala was covered by workers compensation insurance for his injuries.  

Degala sued JSC and Cahill alleging that JSC and Cahill negligently managed the operation of the project site by failing to monitor access to the site and failing to prevent access by people who sought to harm workers. Degala also alleged that JSC and Cahill had the duty to control and maintain the project site in a reasonably safe condition, and to exercise reasonable care in performing their voluntary undertakings to provide security on the site, which included monitoring safe and secure access to the site. Degala alleged that JSC and Cahill breached their duties by removing security guards from the project site and allowing “unfettered access” to the site without regard to worker safety.  

JSC and Cahill filed separate motions for summary judgment. The trial court granted the motions and judgments were entered for defendants. Degala appealed.  

The Privette Doctrine and Its Exceptions 

The Privette doctrine was recently reaffirmed by the Supreme Court in Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256 where the court observed that the hirer of an independent contractor “presumptively delegates to the contractor the responsibility to do the work safely” and that “a presumptive delegation of tort duties occurs when the hirer turns over control of the worksite to the contractor so that the contractor can perform the contracted work.” And when the hirer delegates control, the hirer simultaneously delegates all tort duties the hirer might otherwise owe the contract workers.” 

But the court also recognizes exceptions to the Privette doctrine. At issue in Delgala’s case is the holding of Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, which “appl[ies] where delegation is either ineffective or incomplete.” And Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 “when the hirer does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the [contractor’s] employee’s injury, the hirer may be liable in tort to the [contractor’s] employee.” Accordingly, “[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.” Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439.  

The defendants produced evidence to show it they were presumptively entitled to the benefit of the Privette doctrine, effectively shifting the burden to Delgala to produce evidence of an exception to it. 

To meet that burden, Degala contended that JSC and Cahill retained control over site security, and that at the very least there were issues of fact was to whether they exercised their retained control in a manner that affirmatively contributed to the attack in which he was injured. For their part, JSC and Cahill argued that the Hooker exception did not apply. 

The Delagala court went on to explain what it takes to establish that a hirer owes a duty of care to a contractor’s employee. Namely, that the plaintiff must show that the hirer retained control over the contracted work and exercised that control in a manner that affirmatively contributed to the contract worker’s injury. 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 that “[a] hirer ‘actually exercise[s]’ its retained control over the contracted work 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.’ Sandoval (emphasis added).  

The court went on to note that “[u]nlike ‘retained control’ which is satisfied where the hirer retains merely the right to become so involved, ‘actual exercise’ requires that the hirer in fact involves itself, such as through direction, participation, or induced reliance.” Sandoval. 

“A hirer’s exercise of retained control is an “affirmative contribution” if it “contributes to the injury independently of the contractor’s contribution (if any) to the injury.” [Citation]. Neither “‘actual exercise’”nor“ ‘affirmative contribution’ ” requires that the hirer’s alleged negligence must itself be an affirmative act. Rather, “[t]he hirer’s negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty under Hooker.” Accordingly, a hirer may be liable for failing to undertake a promised safety measure. “If a plaintiff proves that the hirer actually exercised retained control in a way that affirmatively contributed to the contract worker’s injury, the plaintiff establishes that the hirer owed the contract worker a duty of reasonable care as to that exercise of control.” Sandoval. 

The Discussion of Delgala’s Case 

Whether JSC and Cahill owed a duty of care to Degala thus turned on whether JSC and Cahill retained control over the performance of the demolition work that Janus was contracted to perform and exercised that control in a way that contributed to Degala’s injuries.  

Had to demonstrate the absence of triable issues of material fact as to the applicability of the retained control doctrine. [Citations].  

The court of appeal noted that it was undisputed that in practice, JSC and Cahill jointly decided on the appropriate amount of site security, and that JSC purchased and installed a camera system for that purpose. All of this is evidence that JSC and Cahill retained control over site security. 

Security measures taken at the site after the attack on Degala provide more evidence of retained control: JSC hired off-duty police officers to be stationed on site during work hours, and Cahill added a perimeter fence around the entirety of phase three of the project, eliminating the public walkway where Degala sustained his injuries. Although JSC and Cahill pointed out that evidence of subsequent remedial measures taken are inadmissible to show negligence, that evidence was admissible and relevant to show that JSC and Cahill had retained control over site security. 

The court of appeal next determined whether evidence was presented that JSC and Cahill retained control over Janus’s contracted work and actually exercised that control. The court found that:  

maintaining site security was an ongoing issue throughout the time of Janus’s contracted demolition work;  

JSC and Cahill were 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; 

From the elimination of overtime, the instructions to stop work before sundown and stay indoors for lunch and breaks, the occasional closures of the site, and the configurations of the fences around the site where Degala worked.  

From all of this an inference could be drawn that the defendants’ exercise of control over site security amounted to the exercise of control over the manner in which Janus performed its demolition work and that Janus was “not entirely free to perform the [contracted] work in the contractor’s own manner.” Sandoval.  

The next question is whether Degala came forward with evidence from which a jury could infer that JSC and Cahill’s allegedly negligent exercise of their retained control affirmatively contributed to the harm he suffered. The court noted: 

“[P]assively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. [Citations.]  

The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer … had agreed to implement these measures.” [“ ‘[a] hirer’s failure to correct an unsafe condition’ is insufficient” to establish liability under Hooker. 

Degala produced evidence that JSC and Cahill undertook the responsibility of taking reasonable precautions and providing reasonable protection to prevent injury to subcontractors’ employees arising from unauthorized access to the project worksite, and evidence that Janus did not have obligations for site security. Degala’s evidence included constructing (and taking down) fences at the job site, hiring security guards, installing a camera system, and evidence as to how these measures changed over time. This is not a case where JSC and Cahill passively permitted an unsafe condition to exist: there is ample evidence that JSC and Cahill took affirmative steps to address the dangers posed to workers in an area known to have a high rate of crime.  

Degala argued that the evidence he presented showed that the site security measures in place at the time he was attacked were not reasonable in the circumstances and that JSC and Cahill were negligent in configuring the fences, removing security guards, and failing to monitor the on-site cameras during the day; and that their negligence contributed to his injuries. And that was enough to defeat their summary judgment motions and send the matter back to the trial court for such a determination by a jury.