California Court of Appeals Affirms Summary Judgment, Finding That Appellant Failed to Show an Affirmative Contribution to His Injuries Under the Privette Doctrine.

October 01, 2021

Ismael Torres, Jr. sued our client Design Group Facility Solutions, Inc. (Design Group) for personal injuries after he fell through a skylight at a construction site.  Mr. Torres suffered serious injuries due to his fall, including an alleged traumatic brain injury and numerous fractures (including facial, rib, pelvic, and femur.). Mr. Torres has not returned to work following the incident, and it is alleged that Mr. Torres will never be able to work again.

Design Group was hired by Santa Monica Seafood Company as the general contractor to renovate and expand its seafood processing facility. As part of the project, Design Group subcontracted with C&L Refrigeration (C&L) to install new refrigeration units, which required the installation of piping, electrical and equipment on the building’s roof.  C&L in turn hired H.J. Vast (Vast) as a subsubcontractor to do the electrical work.  Mr. Torres was an employee of Vast.

Design Group contractually delegated safety responsibilities to C&L, who developed a plan to traverse the roof to avoid the known skylight risk.  While C&L established a pathway on the western side of the roof, Vast, without direction or input from Design Group, made its own determination that a pathway on the eastern side minimized exposure to the skylight hazard.   Vast instructed its employees, including Mr. Torres, to follow its own pathway on the roof.   Mr. Torres’ accident occurred while he was following Vast’s established route.

Against this factual backdrop, Design Group moved for summary judgment. The trial court initially denied the motion.  Design Group moved for reconsideration based on new evidence under Code of Civil Procedure section 1008, subdivision (b).  At the hearing on the motion, the trial court granted reconsideration and, at the same time, granted the motion for summary judgment for Design Group.  Plaintiff appealed.

In the appellate proceedings, we argued that Privette v. Superior Court ((1993) 5 Cal.4th 689) and its progeny barred Mr. Torres’ recovery because Mr. Torres failed to present evidence that Design Group affirmatively contributed to his injuries.  Under Privette, a hiring contractor is insulated from liability to a hired subcontractor’s employees in the absence of its negligent exercise of affirmative control over the manner of performance of the contracted work.  We argued that Mr. Torres could not demonstrate that Design Group affirmatively caused his injuries.

On October 1, 2021, the California Court of Appeals agreed with our position, stating:

The parties do not dispute that Design was the general
contractor on the project, and that Design subcontracted with
C&L, who in turn sub-subcontracted with Torres’s employer,
Vast. The agreement between Design and C&L required C&L to
comply with all occupational health and safety regulations and to
comply with Design’s safety plan. C&L also agreed to provide a
safe place to work for its employees and for the employees of its
subcontractors. Vast also admitted that it came up with its own
safety practices for its employees who would be working on the
roof. Thus, Design has met its initial burden to show that the
Privette doctrine bars Torres’s claims. The burden then shifts to
Torres to create a triable issue of material fact showing that an
exception to Privette applies. (Alvarez v. Seaside Transportation
Services LLC (2017) 13 Cal.App.5th 635, 644.)

Appellant made several arguments that Design Group affirmatively contributed to Mr. Torres’ injuries, including that Design Group understaffed the project, that it failed to periodically check pathway delineators, that it should have installed a horizontal lifeline, anchor points, other means of fall protection and it cut holes on the roof.  The Court of Appeals rejected these arguments, finding that Design Group made no promise of safety or undertook safety measures to protect Mr. Torres and that Mr. Torres fell while walking on the eastern section outside the established pathway on the western side, so none of Mr. Torres’ alleged “contributions” caused his injuries.  The Court of Appeals found that, at most, Mr. Torres’ evidence might show Design Group made passive contributions, which under Hooker v. Department of Transportation (2002) 27 Cal.4th 198, does not give rise to liability (The “mere retention of the ability to control safety conditions is not enough. ‘[A] general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct. The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff.’ ” (Hooker, supra, 27 Cal.4th at p. 209.).)

Having found no affirmative contributions by Design Group, the Court of Appeals ultimately concluded:

Accordingly, Torres failed to meet his burden to show a
triable issue of fact on whether Design retained control over his
work or that it affirmatively contributed to his injuries.

Therefore, the Court of Appeals affirmed the granting of summary judgment in our client’s favor.

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