Daily Blast August 22, 2011

The California Supreme Court in Seabright Insurance Company v. US Airways, Inc. (Aug. 22, 2011, S182508) ___ Cal.4th ___ held that the Privette doctrine applies when the hirer of an independent contractor fails to comply with workplace safety requirements and, as a result of that failure, the independent contractor’s employee is injured. (Slip opn., p. 1.) Seabright unequivocally holds that a hirer presumptively delegates to the independent contractor any tort law duty it owes to the independent contractor's employees to ensure the safety of the specific workplace that is the subject of the contract. This includes dreaded Cal-OSHA regulation compliance.

The Supreme Court resolved conflicting views among the Courts of Appeals as whether Privette applied when the hirer of an independent contractor fails to comply with Cal-OSHA regulations. (Slip opn., p. 4.) As you know, Privette holds that employees of independent contractors cannot sue the party that hired the contractor when they are injured in the workplace. (Id. at p. 1.) However, it was unsettled whether Cal-OSHA imposed a nondelegable duty of care on a hirer, thereby extending the hirer’s duty of care to the employees of independent contractors. (Id. at pp. 5, 11.)

The Court rejected the notion that a hirer owes a nondelegable duty of care under Cal-OSHA to the employees of an independent contractor. (Slip opn., p. 12.) According to the Court, “by hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory safety requirements.” (Id. at pp. 1-2, emphasis in original.) 

According to the Court, under the definition of “employer” applicable to workplace safety laws, the employees of an independent contractor are not the hirer’s own employees. (Slip. opn., p. 14.) As a result, when defendant US Airways hired independent contractor Lloyd W. Aubry Co. (“Aubry”) to maintain and repair an airport luggage conveyor, it delegated to Aubry any tort law duty of care it had under Cal-OSHA and its regulations to ensure workplace safety for the benefit of Aubry’s employees. (Id. at pp. 12-13.) This delegation, which is implied in the independent contractor’s hiring, includes a duty to identify the absence of safety guards required by Cal-OSHA and to remedy that hazard. (Id. at p. 13.) As a result, the court held that the Court of Appeal erred in reversing the trial court’s grant of summary judgment in favor of the defendant. (Id. at p. 2.) 

Justice Werdegar prepared a separate concurring opinion agreeing that US Airways was entitled to summary judgment, but not based upon the majority's reasoning. She argued that a nondelegable duty under Cal-OSHA applied to the hirer, US Airways, because Labor Code section 6400, subdivision (b), articulates a fundamental duty of all employers to provide a safe workplace. (Slip opn., conc. opn. of Werdegar, J., p. ) According to Justice Werdegar, the Legislature has already determined that the Cal-OSHA duties of employers at multi-employer worksites extend to the employees of other employers. (Id. at p. 7.) 

The Supreme Court's opinion reflect an unequivocal affirmance of the Privette doctrine in cases where a plaintiff tries to get around Privette by arguing that Cal-OSHA imposes a duty of care on a hirer of an independent contractor that cannot be delegated. Put this one to good use!

Related Practices

• Appellate