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The Privette Doctrine – What does it Mean to Homeowners?

Among the worries involved in constructing or remodeling your home, liability for a contractor’s employee who gets hurt on the job should not be one. A line of cases starting with Privette v. Superior Court (1993) 5 Cal.4th 689, commonly referred to as the Privette Doctrine, explain the limitations of a homeowner’s liability for work performed on the premises by the employee of a contractor. The Privette Doctrine generally holds property owners and general contractors are not liable for injuries to employees of subcontractors absent an affirmative act or omission causing injury.

In Privette, an employee of a subcontractor was severely burned by hot tar. The employee sought recovery in the workers’ compensation system and also sued the property owner, Privette, contending Privette could be held vicariously liable for the roofing contractor’s negligence under the doctrine of peculiar risk. As explained in Privette, the peculiar risk doctrine allows a property owner to be held liable for a contractor’s negligent performance of inherently dangerous work where the work causes injuries to a third party. The Privette court held the doctrine of peculiar risk could not be extended to impose liability on a property owner for injuries of a contractor’s employee because the California Workers’ Compensation Act provides the exclusive remedy for workplace injuries. The court reasoned the plaintiff was barred from recovering damages from his employer (the independent contractor) by the exclusive remedy of workers’ compensation, and the plaintiff should not be allowed to recover from the property owner who hired the independent contractor as the property owner was indirectly paying for the cost of workers’ compensation coverage because the contractor presumably calculated such cost into the contract price.

The California Supreme Court explained the underlying rational of the Privette Doctrine again Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253. In Toland, an employee of a subcontractor who was injured in the course of employment brought an action against the general contractor. However, the court denied the imposition of any liability. Relying on Privette, the court stated “it is illogical and unfair that a landowner or other person who hires an independent contractor should have greater liability for the independent contractor’s negligence towards the contractor’s employees than the independent contractor whose liability is limited to providing workers’ compensation coverage.” Toland, supra, at 270.

Although the Privette Doctrine is premised on the theory an employee will be compensated for his injuries under the workers’ compensation system, the presence or absence of workers’ compensation insurance does affect an employee’s ability to recover directly from a property owner. As the court explained in Tverberg v. Fillner Const., Inc. (2010) 49 Cal. 4th 518, 521, subcontractors are in the best position to protect the welfare of their employees. An independent contractor “has authority to determine the manner in which inherently dangerous construction work is to be performed, and thus assumes legal responsibility for carrying out the contracted work, including the taking of workplace safety precautions.” Tverberg, supra. Thus, an independent contractor may not hold a property owner vicariously liable for injuries resulting from the contractor’s failure to guard against risk.

While the Privette Doctrine insulates homeowners from liability for injury to a contractor’s employee, it does not bar recovery against a property owner in all situations. An employee may be able to recover against a landowner where the landowner retains control over part of the work. As explained in Sheeler v. Greystone Homes, Inc., (2003) 113 Cal. App. 4th 908, “one who entrusts work to an independent contractor, but who retains the control over any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Id. at 689.

What does this mean to landowners looking to build or remodel their home? Based on the Privette Doctrine, the best way to avoid potential liability for any injuries to employees that may occur on the premises during the course of construction or a remodel is to hire a general contractor and give the contractor control over how the work is performed.

ABOUT THE AUTHOR: Kate Besch is a graduate of the University of Iowa College of Law. She specializes in general liability defense and business litigation. Contact Kate at 858.263.4115 or kbesch@tysonmendes.com.

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