Everyone needs to hire a construction company with independent contractors sometimes. Homeowners remodel their homes, churches need lights installed, and major corporations hire professionals to decorate new corner offices. In a world where everyone is looking for a quick way to earn extra cash, hiring companies to do work for you requires some research to minimize risk and receive quality work. And what about liability? What if a worker falls off a scaffolding at a private home? Who is liable? What if a company is hired to build the kitchen at a new restaurant and one of their employees hurts themselves?
Privette Presumption and How It Helps Hirers
The Privette[i] presumption states: “Under California law, a strong presumption exists that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety.”[ii] Generally, the hirer of the contractor is not liable for workplace safety, because the contractor who was hired is an expert in their field, including how to make the worksite safe. However, there are two exceptions to this presumption which apply if the “hirer’s delegation (or withdrawal of control) is either ineffective or incomplete.”[iii]
To Limit Liabity – Do Not Retain Control of Your Contractors
The first exception is known as the Retained Control Exception, which applies when three elements are met: (1) the hirer retains control over the manner in which the contractor performs the work; (2) the hirer actually exercises its retained control by involving itself in the work such that the contractor is not entirely free to do the work in its own manner; and (3) the hirer’s exercise of retained control affirmatively contributes to the worker’s injury.[iv] The September 2, 2022, California Court of Appeal holding in Miller v. Roseville, held the availability of a scaffold for use by the subcontractor was not enough for the exception to apply since the hirer did not specifically instruct the use of the scaffolding.[v]
Concealing a Jobsite Hazard Will Cost You
The second exception is known as the Concealed Hazard Exception, which applies when (1) the hirer is also the owner of land and (2) if the landowner knew or should have known of a latent or concealed preexisting hazardous condition on its property, (3) the contractor did not know and could not have reasonably discovered this hazardous condition, and (4) the landlord failed to warn the contractor about this condition.[vi] The August 29, 2022, California Court of Appeal analysis in McCullar v. SMC Contracting, Inc., reasoned: “even when the hirer of a contractor negligently creates a known workplace hazard…the contractor still retains the responsibility for assessing whether its workers can perform their work safely”[vii]
When hiring a contractor, a hirer is only liable if the hirer has (1) retained control over the project/how the work is to be done, or (2) knows/should have known about a concealed hazard which the contractor does not know about and could not reasonably discover, and the hirer fails to warn. In a state like California, hiring contractors is such a common occurrence which unfortunately often turns into litigation. It is important to be aware of rights and duties under the law prior to engaging in business with contractors.
[ii] McCullar v. SMC Contracting, Inc., 83 Cal. App. 5th 197, 298 Cal. Rptr. 3d 785, 788 (2022)
[iii] Sandoval v. Qualcomm Inc., 12 Cal. 5th 256, 271, 494 P.3d 487, 495 (2021)
[iv] Hooker v. Department of Transportation (2002) 27 Cal. 4th 198.
[v] Miller v. Roseville Lodge No. 1293, No. C090751, 2022 WL 4493906, at *6 (Cal. Ct. App. Sept. 2, 2022)
[vi] Kinsman v. Unocal Corp., 37 Cal. 4th 659, 674, 123 P.3d 931, 940 (2005), as modified (Mar. 1, 2006)
[vii] (McCullar v. SMC Contracting, Inc., 298 Cal. Rptr. 3d 785, 793 (Ct. App. 2022))