Imposing Safety Measures: The Restriction of the Privette Doctrine Continues.

Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281.

The Privette doctrine, which limits the responsibility of the hirer of an independent contractor for injuries sustained by the contractor's employees, may no longer provide as much protection from the personal injury claims plaguing the construction industry that it once did. Commencing with Privette v. Superior Court, the California Supreme Court effectively eliminated an owner/hirer's vicarious liability to the independent contractor's employees, based on the rationale that the hirers should not have greater liability than the plaintiffs' employers, who are protected by the Workers' Compensation statutes' limitation on liability. The doctrine culminated in Hooker v. Dept. of Transportation, where the court held that even a hirer's negligent exercise of retained control will not create liability unless it affirmatively contributes to the employee's injuries.

The Barclay court followed other recent California appellate decisions that have applied Hooker to restrict the Privette doctrine's protections. The defendant was the owner of several industrial fuel tanks who, through a series of subcontracts, hired the plaintiff's employer to clean the tanks. The plaintiff was injured by a fuel explosion while in the course of cleaning the tanks. He sued the owner of the tanks, alleging general negligence and premises liability, based in part on the owner's failure to provide adequate safety devices. The trial court granted the owner's motion for summary judgment based on the Privette doctrine, under the theory that the owner did not "direct, control, or supervise the operative details of the [plaintiff's] work, and did not contribute any advice or equipment."

The Court of Appeals reversed, holding that the owner's violation of a safety regulation "affirmatively contributed" to the plaintiff's injuries. Specifically, the owner failed to provide fire extinguishers within 75 feet of the tanks, as required by California Fire Code § 7904.4.9.2. The court reasoned that, like the liability for retained control analyzed in Hooker, a hirer is liable to its independent contractor's employee when its violation of a duty imposed by statute or regulation "affirmatively contributes" to the employee's injury. The court concluded that the failure to provide the fire extinguishers in close vicinity to the tanks affirmatively contributed to the injuries, since it delayed the termination of the fire resulting in more severe burns than otherwise.

This case seems to contradict Privette and its descendants, which ostensibly eliminated vicarious liability. Whenever there is a pertinent safety regulation, the Barclay opinion revives a hirer's liability for a non-delegable duty (a form of vicarious liability) by imposing on a hirer the obligation to provide safety measures for an independent contractor's employees, even where responsibility for all of the work has been delegated to the contractor. The Barclay court rationalizes this contradiction by asserting that Privette and its progeny never addressed a non-delegable duty based on a regulatory violation. However, this reasoning eviscerates the Privette doctrine by forcing a hirer to enforce a complex web of overarching safety regulations, where the hirer would otherwise have no involvement with the work. It remains to be seen whether the California Supreme Court will allow this reinterpretation of Privette to stand.

- Tyson Arbuthnot