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Seabright Insurance Company v. Us Airways

August 22, 2011


City and County of San Francisco Ct.App. 1/4 A123726 Super. Ct. No. CGC-06-458707

The opinion of the court was delivered by: Kennard, J.

Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).) Here, we consider whether the Privette rule applies when the party that hired the contractor (the hirer) failed to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure. We hold that the Privette rule does apply in that circumstance.

By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor's employees to ensure the

safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor's employees to comply with applicable statutory or regulatory safety requirements.*fn1 Such delegation does not include the tort law duty the hirer owes to its own employees to comply with the same safety requirements, but under the definition of "employer" that applies to California's workplace safety laws (see Lab. Code, § 6304),*fn2 the employees of an independent contractor are not considered to be the hirer's own employees.

The Court of Appeal here erred in reversing the trial court, which had granted summary judgment for defendant.


Defendant US Airways uses a conveyor to move luggage at San Francisco International Airport. The airport is the actual owner of the conveyor, but US Airways uses it under a permit and has responsibility for its maintenance. US Airways hired independent contractor Lloyd W. Aubry Co. to maintain and repair the conveyor; the airline neither directed nor had its employees participate in Aubry's work.

The conveyor lacked certain safety guards required by applicable regulations. Anthony Verdon Lujan, who goes by the name Verdon, was inspecting the conveyor as an employee of Aubry, and his arm got caught in its moving parts. Plaintiff SeaBright Insurance Company, Aubry's workers' compensation insurer, paid Verdon benefits based on the injury and then sued defendant US Airways, claiming the airline caused Verdon's injury and seeking to recover what it paid in benefits. Verdon intervened as a plaintiff in the action, alleging causes of action for negligence and premises liability.

Defendant US Airways sought summary judgment based on Privette, supra, 5 Cal.4th 689, and Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker). In Hooker, we held that the hirer of an independent contractor can be liable for a workplace injury of the contractor's employee if the hirer retained control over the contractor's work and exercised that control in a way that "affirmatively contribute[d]" to the employee's workplace injury. (Hooker, at p. 213.) Defendant US Airways argued that it did not "affirmatively contribute[]" to employee Verdon's injury.

Insurer SeaBright and employee Verdon (plaintiffs) countered with a declaration by an accident reconstruction expert, who stated that the lack of safety guards at "nip points" on the conveyor violated Cal-OSHA regulations (see § 6300 et seq. [Cal. Occupational Safety & Health Act of 1973 (Cal-OSHA)]; Cal. Code Regs., tit. 8, §§ 3999, 4002 [regulations governing conveyor safety]) and that the safety guards would have prevented Verdon's injury.

The trial court struck plaintiffs' declaration insofar as it discussed causation.*fn3 It found no evidence that US Airways "affirmatively contribute[d]" to the accident (Hooker, supra, 27 Cal.4th at p. 213) and granted summary judgment for defendant US Airways. The Court of Appeal reversed.

The Court of Appeal held that, under Cal-OSHA, defendant US Airways had a non-delegable duty to ensure that the conveyor had safety guards, and that the question whether the airline's failure to perform this duty "affirmatively contribute[d]" to plaintiff's injury (Hooker, supra, 27 Cal.4th at p. 213) remained a triable issue of fact, precluding summary judgment. The court noted conflicting views among the Courts of Appeal as to how our holdings in Privette, supra, 5 Cal.4th 689, and Hooker, supra, 27 Cal.4th 198, apply when the hirer of the independent contractor failed to comply with Cal-OSHA regulations, and the court followed a line of decisions holding that such omissions can expose the hirer to liability.

To resolve the conflict in the Courts of Appeal, we granted defendant US Airways's petition for review.


Two questions govern the assignment of tort liability: Did the defendant owe the plaintiff a duty of care? If so, what standard of care applied? (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 718; Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546.) A plaintiff can rely on statutory law to show that a defendant owed the plaintiff a duty of care. (See Elsner v. Uveges (2004) 34 Cal.4th 915, 927 & fn. 8.) Here, plaintiffs contend (1) that Cal-OSHA imposed on defendant US Airways a duty of care, (2) that this duty of care extended to hired contractor Aubry's employees, and (3) that defendant could not delegate the duty to Aubry. Plaintiffs rely on a principle set forth in the Restatement Second of Torts: "One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions." (Rest.2d Torts, § 424.)

Defendant US Airways assumes that Cal-OSHA imposed on it a duty of care that extended to the employees of Aubry, an independent contractor, arguing that even if it had such a duty, our decisions, beginning with Privette, supra, 5 Cal.4th 689, reflect a strong policy "in favor of delegation of responsibility and assignment of liability" to independent contractors. (Kinsmanv. Unocal Corp. (2005) 37 Cal.4th 659, 671 (Kinsman).)

Whether Cal-OSHA imposes on an employer like US Airways a tort law duty of care that extends to the employees of other parties such as independent contractors is a question that remains unsettled. In De Cruz v. Reid (1968) 69 Cal.2d 217, 228-229 (De Cruz), this court answered the question in the affirmative, holding that an employer can be liable in tort to the employees of other parties for violations of Cal-OSHA and its regulations. But the statutory basis of that 1968 holding was arguably undermined by significant changes in the law in 1971 (see Stats. 1971, ch. 1751, §§ 2-3, pp. 3780-3781 [amending § 6304 and adding § 6304.5]) and in 1999 (see Stats. 1999, ch. 615, § 2, p. 4337 [amending § 6304.5]).

Under current law, a plaintiff may rely on Cal-OSHA requirements, in the same manner that it can rely on other statutes and regulations, in an attempt to show that a defendant owed the plaintiff a duty of care (§ 6304.5), but the law now defines "employer" more narrowly than it did before 1971. Before 1971, the Legislature's definition of the term "employer" included "every person having direction, management, control, or custody of any employment, place of employment, or any employee." (Stats. 1937, ch. 90, § 6304, p. 306.) This broad definition of employer was an underpinning of this court's 1968 holding in De Cruz, supra, 69 Cal.2d 217, that employers can be liable in tort to the employees of other parties for violations of workplace safety requirements. (See id. at pp. 228-229.) Through a 1971 amendment to section 6304, the Legislature narrowed its previous broad definition of employer, leaving simply a cross-reference to section 3300. (See Stats. 1971, ch. 1751, § 2, p. 3780.) As relevant here, section 3300 defines an employer as "[e]very person . . . which has any ...

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