Subcontractor’s Injuries in the Workplace – The Importance of the Privette Doctrine

On September 28, 2022, California’s Third District Court of Appeal issued its published decision in Miller v. Roseville Lodge No. 1293 et al., which affirmed the judgment that a hotel owner was not liable for on-the-job injuries sustained by an independent contractor’s worker.

What Happened?

Plaintiff Ricky Lee Miller, Jr. sued defendant Roseville Lodge No. 1293 (“the Lodge”) and John Dickinson (the Lodge’s bartender) for injuries he suffered while working as a subcontractor on the Lodge property. The Lodge hired Miller’s employer, Gelatini, to move an automated teller machine (ATM) on its premises. On the day of the incident, neither Miller nor his employer brought a ladder to assist in relocating the ATM, so Miller asked Dickinson whether he could use a scaffold he saw in the bar. Before climbing the scaffold, Miller failed to lock its four wheels, and while climbing down, the scaffold shifted from the wall and Miller fell and hit his head.

The trial court granted defendants Roseville Lodge and Dickinson’s motion for summary judgment on the ground that the Privette doctrine provides a complete defense to Miller’s claims, and Miller appealed.

What did the Court of Appeal Say?

The Privette doctrine indicates that, absent an exception, an entity that hires an independent contractor cannot be liable for on-the-job injuries sustained by the independent contractor’s workers. Privette v. Superior Court (1993) 5 Cal. 4th 689. “[W]hen the person injured by the negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the worker’s compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.”  Id. at  696; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 270.

The Miller Court of Appeal examined two exceptions to the Privette doctrine, but ultimately held that none of the exceptions to the Privette doctrine applied and affirmed the trial court’s ruling.

Retained Control Exception

The first Privette exception examined by the Court of Appeals in Miller was the retained control exception. The exception applies if: (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. Sandoval v. Qualcomm Incorporated (2021) 12 Cal. 5th 256, 276-277. The Court found that despite Miller’s arguments, the Lodge and its bartender did not “supply” Miller with a scaffold. The Court further reasoned that the Lodge delegated the duty to identify the fact that the scaffold had wheels and was unsafe to use to Miller’s employer, Gelatini. As a result, the Lodge did not retain any control in the manner in which Miller performed his work.

Concealed Hazard Exception

The second examined exception was the concealed hazard exception, which applies if the hirer is also an owner or possessor of land, and if “the landowner knew, or should have known of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition.” Kinsman v. Unocal Corp. (2005)  Cal.4th 659. Although Miller argued that the unsafe scaffold was a concealed hazard, the Court reasoned that Miller could have easily discovered the existence of the wheels on the scaffold by inspecting the scaffold prior to using it. Thus, the Court found that the concealed hazard exception also did not apply.

Conclusion

Miller v. Roseville Lodge is a strong example of the scope of the duty of a premises owner to its subcontractors. Under the Privette doctrine, premises owners are generally protected from liability for on-the-job injuries sustained by a hired independent contractor’s workers. As there are increasing numbers of matters involving injuries sustained at the workplace, the Miller decision emphasizes the importance of the Privette doctrine to premises owners, as well as the scope of possible exceptions that an injured worker could use to try and defeat it.

For further information or specific guidance, please contact Soniya Khemlani, Jennifer Morin, or Chelsea Cortes.