By now, most legal practitioners are aware of the so-called Privette Doctrine derived from the seminal California Supreme Court case of Privette v. Superior Court (1993) 5 Cal.4th 689. Privette essentially abrogated the “peculiar risk doctrine,” which for years preceding afforded plaintiff’s attorneys a legal theory to hold landowners directly responsible for injuries caused by an independent contractor’s negligence where the work involved was deemed inherently dangerous. “The doctrine of peculiar risk is an exception to the common law rule that a hirer was not liable for the torts of an independent contractor. Under this doctrine, ‘a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others. By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caused by inherently dangerous work will be compensated, that the person for whose benefit the contracted work is done bears responsibility for any risks of injury to others, and that adequate safeguards are taken to prevent such injuries.’” (Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638, 646−647).
Focusing on the issues of justifiable compensation to the injured worker and the notion of holding an otherwise not-at-fault hirer (landowner or general contractor) liable for the injury, Privette (and its progeny) held that the hirer of an independent contractor presumptively delegates responsibility for the workplace safety to the contractor and thus is not liable for on-the-job injuries to the contractor’s workers, unless (1) the hirer withholds critical safety information, or (2) the hirer retains partial control over part of the work and negligently exercises that retained control in a way that affirmativelycontributes to the worker’s injury. (See Collins v. Diamond Generating Corporation (2024) 107 Cal.App.5th 1162, 1166).
Compensating the Injured Worker under Privette
In formulating the doctrine, the Privette court addressed the issue of compensating a contractor’s not-at-fault employee worker for an on-the-job injury if the landowner and general contractor could escape liability by meeting the doctrine’s required elements. Privette reasoned that the doctrine does not leave the injured worker without a remedy for compensation; namely that the worker may obtain just compensation through the worker’s employer’s workers’ compensation insurance. This avenue of compensation for the employee worker also took care of the public policy issue of holding a non-negligent landowner or general contractor vicariously liable for another worksite contractor’s negligence, deeming that latter consequence an “anomalous result that the nonnegligent person’s liability [for an injury] greater than that of the person whose negligence actually caused the injury.” (Privette, supra, 5 Cal.4th at 698).
Later cases justified the Privette doctrine relying on a more emphasized focus on the delegation principle involved: “When an independent contractor is hired to perform inherently dangerous construction work, that contractor, unlike a mere employee, receives authority to determine how the work is to be performed and assumes a corresponding responsibility to see that the work is performed safely. The independent contractor receives this authority over the manner in which the work is to be performed from the hirer by a process of delegation. This delegation may be direct, when the hirer has contracted with the independent contractor, or indirect, when the hirer contracts with another contractor who then subcontracts the work to the independent contractor.” (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 528; emphasis added).
The Chain of Delegation Theory
Thus, was born the “chain of delegation” theory. So, who is in this chain? Obviously the “hirer,” although that term is somewhat vague. In normal construction projects there sits two entities at the top of the chain – the landowner and the general contractor. Either or both then hire numerous subcontractors for the various trades necessary for construction or operation of the project. This latter group makes up the independent contractors. We know already that the landowner and general contractor both may claim a defense of delegation under the Privette doctrine. Padilla v. Pomona College (2008) 166 Cal.App.4th 66, 664-667 exemplified the chain of delegation theory, holding that the college [landowner] that hired the general contractor, which in turn hired a demolition contractor, was not liable for injuries to the demolition contractor’s employee. A few cases have not followed the chain of delegation theory in applying the Privette doctrine, but the greater trend is in allowing for extending of the chain.
How much further will the chain of delegation extend before it snaps? In 2024, the chain was allowed to stretch further. Collins v. Diamond Generating Corporation (2024) 107 Cal.App.5th 1162 (cited above), involved an injury to a contractor’s employee killed in a power plant accident when a fuel unit depressurized and exploded while it was going through its lockout/tagout procedures. The plant was owned by Sentinel Energy Center, LLC. Sentinel hired DGC Operations, LLC to manage the plant. DGC Corporation was named in the lawsuit due to its 50% indirect ownership in Sentinel through its partial ownership of several holding companies, and was the parent company of DGC Operations, LLC. DGC Corporation sought coverage under the Privette doctrine, arguing that as a partial owner of Sentinel, it was entitled to the same protection under the doctrine.
Evidence proffered at trial established that DGC Corporation – while not directly an owner or a “hired” contractor at the plant – nevertheless exerted rather significant control over the plant’s operations and oversight over the plant’s manager DGC Operations, LLC. Based on these facts, Collins determined that the Privette doctrine may apply to DGC Corporation. However, because of the doctrine’s exceptions, which are purely fact based, the case was to be returned to the trial court for a new trial in which DGC Corporation would be allowed to assert the defense, after which it was in the hands of the jury to determine the exception’s factual issues on whether DGC Corporation retained partial control over the lockout/tagout procedures of the work and negligently exercised that retained control in such a way that affirmatively contributed to DGC Operations, LLC’s employee Collin’s death.
Takeaways
For defense attorneys handling workplace injury cases on behalf of a landowner or general contractor, the Collins holding mandates an early investigation into a client’s partial owners, related holding companies, and parent company status in analysis for potential liability exposure and defense of that exposure under the Privette doctrine’s chain of delegation. Should you find yourself wondering if the Privette Doctrine applies in your situation, please contact us at Bradley, Gmelich + Wellerstein, LLP for a consultation.
About the Author
Peter H. Crossin, Esq. is an experienced attorney in good standing with vast experience on both sides of the Plaintiff and Defense bars. He is admitted to all courts of the State of California and the U.S. District Court for the Central District of California. He has practiced extensively in the Superior Courts of the State and in the California Courts of Appeal. He has authored and argued over 20 appeals and writs and has exceptional writing and team leadership skills.
Mr. Crossin has held leadership positions on the Plaintiffs’ Steering Committees for the California In Re Intraocular Lens and Latex Glove coordinated litigations and defendants in the In Re Welding Rod coordinated litigation. He has prosecuted and defended a myriad of cases involving toxic tort, catastrophic injury, warranty claims, product and premises liability (with a particular emphasis on premises third-party criminal act litigation), construction defect, and contract disputes
