Outside of certain California legal circles, the Privette doctrine is not well known, but this doctrine provides important liability protections for anyone, including community associations, that hire an independent contractor to perform work on one’s property. Because of these potential liability protections, community association boards and managers should be aware of the Privette doctrine and its exceptions to protect the communities they serve from potential liability stemming from workplace injuries.
The Privette doctrine derives its name from the 1993 California Supreme Court case, Privette v. Superior Court (1993) 5 Cal.4th 689. Prior to this case, California utilized the doctrine of peculiar risk meaning that a person who hired an independent contractor to perform an inherently dangerous job could be held liable for injuries suffered to the independent contractor’s employees while performing that job.
In the Privette case, Privette hired a roofing contractor to install a new roof on the property owner’s duplex. While performing that job, one of the roofer’s employees was badly burned by the hot tar he was carrying when he fell off a ladder to the roof. Privette was not present at the property when the employee’s injuries occurred. The employee sued Privette alleging that Privette was negligent in hiring the roofer and that the doctrine of peculiar risk made Privette liable for his injuries. However, the court in Privette determined that the doctrine of peculiar risk was no longer fair. Why? Because the State’s workers’ compensation system allows injured workers to “recover benefits for injuries ‘arising out of and in the course of the employment’” and when a person or entity hires an independent contractor to perform a job or service, the hirer inherently delegates to that contractor the obligation to perform the work safely and to provide a safe worksite. In light of these reasons, the Privette court held that the hirer of an independent contractor would not be vicariously liable for work-related injuries suffered by the workers of hirer’s independent contractor. The court’s holding would be thereafter called the “Privette doctrine.”
There are two elements to the Privette doctrine, which together create a rebuttable presumption in favor of a defendant hirer. The first element is that the defendant hirer must establish that the plaintiff worker was either the independent contractor or worked for the independent contractor when the plaintiff’s injuries or death occurred. The second element is that the defendant hired the plaintiff directly or hired the plaintiff’s employer when the plaintiff’s injuries or death occurred. If a defendant hirer can establish both elements of the Privette doctrine, the burden of proof shifts to the plaintiff worker who must prove that an exception to the Privette doctrine applies.
There are currently three exceptions to the Privette doctrine, which if proven by a plaintiff worker could expose the defendant hirer to liability:
1) Retained Control Exception – Under the retained control exception, a person or entity that hires an independent contractor will not be liable for work-related injuries to the independent contractor’s employees unless the hirer retained control over the safety conditions at a jobsite and by negligently exercising that retained control the hirer affirmatively contributed to the worker’s injuries. (See Hooker v. Department of Transportation (2002) 27 Cal.4th 198.)
2) Defective Equipment Exception – Under the defective equipment exception, if a person or entity hires an independent contractor, the hirer requests or requires the independent contractor to use defective equipment of the hirer to perform the work, and that defective equipment affirmatively contributed to the worker’s work-related injuries, then the hirer may be liable for the worker’s injuries or death. (See McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219.)
3) Concealed Hazard Exception – Under the concealed hazard exception, if a person or entity hires an independent contractor, the hirer knew or should have known of a preexisting concealed hazardous condition on the hirer’s property, the independent contractor did not know or could not have reasonably discovered that preexisting concealed hazard, the hirer failed to warn the independent contractor of that hazard, and a worker of the independent contractor suffers injuries or dies because of that preexisting concealed hazard, then the hirer may be liable for the worker’s injuries or death. (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659.) Conversely, if an independent contractor knows of a concealed hazard on the hirer’s property or the hazard is open and obvious, the independent contractor fails to consider that hazard and, as a result, the independent contractor provides an unsafe worksite, and the independent contractor’s failure to provide a safe worksite results in a worker becoming injured or dies, then the hirer will not be liable. (See Gonzalez v. Mathis (2021) 12 Cal.5th 29.)
In light of the Privette doctrine and its exceptions, community association boards and managers should keep the following in mind:
- Besides determining the scope of work, leave any decisions as to how the work should be performed and what equipment should be used to perform the work to the discretion of the hired independent contractor.
- If a board or manager knows of a preexisting concealed hazard in the community where the independent contractor and/or their workers will be working or traversing, then disclose that hazard to the independent contractor prior to the work commencing.
- Contracts with vendors should expressly delegate to the independent contractors the obligation to comply with all applicable statutory and regulatory requirements to provide a safe worksite.
- Confirm that the independent contractor has the requisite license(s), insurance and worker’s compensation coverage prior to hiring the independent contractor.
- Require the independent contractor to add the association as an additional insured on the independent contractor’s insurance policies whenever possible.
Dea C. Franck, Esq., is a shareholder and senior attorney with Epsten, APC. Epsten, APC has been providing solutions to Southern California common interest development legal issues since 1986. Dea may be contacted at [email protected].
*This article was originally published in the CAI-CV HOA Living Coachella Valley Magazine and was adapted from the original article, The Privette Doctrine: How Community Associations Can Be Shielded from Potential Liability for Work-Related Injuries to Employees of Independent Contractors) as authored by Dea C. Franck, Esq.