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Negligence: Revisiting the Privette Doctrine

Author: David Ramirez

Guest Editor: Jeremy Freedman

October 5, 2020 2:03pm

In the recent case of Horne v. Ahern Rentals, Inc. (2020) 50 Cal.App.5th 192, The Second District Court of Appeal revisited the issue of the “Privette Doctrine” and the exceptions to it.  Ever vigilant as to the Courts continued expansion of the “exceptions” to the Privette Doctrine, it was refreshing to see the Court instead merely review the facts of the case in context of the prior holdings, which created those exceptions to Privette.  If anything, the Court appeared to clarify the issues of active versus passive negligence in application to the Privette exception.

Background

Plaintiffs filed a wrongful death action against Defendant Ahern Rentals, Inc. (“Ahern”) arising out of the fatal incident involving Ruben Dickerson (“Dickerson”), while employed by independent contractor 24-Hour Tire Service, Inc.  Dickerson was crushed on Ahern Rentals’ property when a forklift that was improperly placed on uneven ground collapsed as Dickerson laid under the raised forklift as he performed tire maintenance.

Plaintiffs’ suit would normally be barred by the Privette line of decisions which arise out of the principle that an independent contractor’s hirer presumptively delegates to the contractor its tort law duty to provide a safe workplace for the contractor’s employees. [Privette v. Superior Court (1993) 5 Cal.4th 689 (“Privette”)].

The Privette rule is subject to a number of exceptions including (1) the “peculiar risk” exception; (2) the “nondelegable duty” exception; and (3) the “affirmative contribution” exception. (See Privette, supra.)  Here, Plaintiffs’ claimed that their suit against Ahern arose out of the “affirmative contribution” exception to Privette as defined by Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 (“Hooker”).  Hooker allows suits otherwise barred by Privette to go forward if the hirer of the independent contractor “exercised control over safety conditions at the worksite in a way that affirmatively contributed to the employee’s injuries.”

The facts in this case arise out of the Dickerson’s work replacing the tires on a forklift. The forklift was owned by Defendant Ahern who had parked the lift on uneven ground with the boom in an elevated position contrary to the forklift manufacturer’s guidelines for servicing the forklift.   The forklift was then lifted by jacks by 24-Hour Tire Service employees to allow Dickerson to install new tires.

In the process of replacing the tires, Dickerson placed himself fully under the forklift, the forklift collapsed due to the jacks being on an uneven surface with the boom extended, and Dickerson died from his injuries.  Plaintiffs, Dickerson’s heirs, filed the instant litigation and met their burden of establishing the requisite factual foundation for the Privette presumption to apply as they established the death of their family member occurred after Ahern hired decedent’s employer to perform work at Ahern’s premises, and that the death of their family member occurred while working at Ahern’s site.

The issue became whether or not Ahern’s conduct met the exception as set forth by Hooker requiring Ahern’s conduct over safety conditions on their premises to affirmatively contribute to the fatal incident involving decedent.

Defendant Ahern Rentals moved for summary judgment, arguing that Plaintiffs failed to proffer evidence that Ahern controlled the job site’s safety conditions such that it affirmatively contributed to decedent’s injuries.

Plaintiffs’ argument that Ahern affirmatively controlled the work site’s safety conditions was two-fold: (1) Ahern affirmatively contributed to the incident by creating an unsafe condition by placing the forklift on uneven ground with the boom extended rather than stowed for the independent contractor to perform the tire rotation; and (2) Ahern failed to train Dickerson on proper servicing practices as set forth by the manufacturer of the forklift in lowering the boom and placing the lift on level ground prior to replacing the tires.

The trial court dismissed both of Plaintiffs’ arguments and granted summary judgment.

Ruling

The Court of Appeals affirmed and relied on Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446 (“Tverberg”) which draws a distinction between passively permitting an unsafe condition to occur and actively directing an unsafe condition be created. The Court of Appeals found that the evidence presented at most constituted a passive allowance of an unsafe condition and ruled that the elements of the Hooker exception to the Privette rule were not met.

The Court stated that a “hirer’s failure to correct an unsafe condition, by itself, does not establish an affirmative contribution.” The Court of Appeals found that Ahern Rentals did not train Dickerson, did not supervise his work, and did not instruct him or his colleagues how to complete the work in a safe manner.  Further, the Court Of Appeals identified the facts presented set forth that Dickerson knew the lift was parked on uneven ground, and it was less stable with the boom raised rather than lowered.  Dickerson analyzed the workspace prior to beginning the tire installation.  Despite the unsafe condition, neither Dickerson, nor anyone else from 24-Hour Tire, asked that Ahern Rentals move the forklift to level ground or lower the boom.

The fact that Ahern had the keys to the forklift and the ability to remedy the unsafe condition was insufficient evidence to show that Ahern controlled the safety conditions on the date of the incident and affirmatively contributed to the fatal injury of decedent. As there was no evidence of any basis for liability, the Court of Appeals found that summary judgment was entered properly.

Although Hooker provides an exception to Privette by distinguishing the amount of control exercised by those who affirmatively contributed to the injury from those who did not. Horne delineates what conduct is required to meet the elements of Hooker. Horne exemplifies that a successful Motion for Summary Judgement relying on Privette will show that the third party exercised as little control as possible such that it could not and did not affirmatively contribute to the injuries claimed.

The Court of Appeals held that Ahern Rentals accomplished that by not supervising Dickerson’s work, not training him how to use the forklift and by not telling Dickerson or his colleagues how to complete the task.  The mere fact that Ahern had the keys to the forklift, placed it on uneven ground with its boom extended, and could have moved it or lowered the boom was merely a passive act which was insufficient control to affirmatively contribute to the unsafe condition and decedent’s injury.

The Court of Appeal further clarified the underlying conduct required to qualify for the Hooker exception to the Privette rule is more than an unsafe condition that a third party passively allows to exist on its property.

Takeaway

The impact of this case dims the possibility that manufacturers of industrial products will be able to share liability exposure with property owners, even when the property owner was alleged to have created an unsafe condition in which the manufacturer’s product was misused thereby causing injury.

 

David P. Ramirez is Senior Counsel at TYSON & MENDES, LLP, and primarily represents clients in complex litigation, including construction defect, insurance law, property disputes, and product liability.  Mr. Ramirez was named as a “Top Lawyer” in San Diego for “Complex Litigation” in March 2020 by San Diego Magazine.

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