CAJPA, Privette, and McCullar
Hello there readers! Your humble blogger is back from yet another conference. This time I had the pleasure of attending CAJPA for the first time and, let me just say – phenomenal!
The lectures were varied and some touched directly on workers compensation, but the opportunity to meet so many interesting people and hear about the issues facing their various risk systems was wonderful.
The big shadow over the event was of course, Senate Bill 1127, which would severely penalize certain public sector employers for failure to accept certain claims within 75 days (that’s right, 75, not 90). Your humble blogger periodically refreshed the leginfo website to see if Governor Newsome had signed or vetoed the ridiculous piece of legislation.
Now lets discuss the Privette doctrine! As some of my readers will recall, your humble blogger originally hails from the former Soviet Union. There, “privette” was and still is a common greeting. Imagine how happy I was to get my start in workers’ compensation defense law and learn that there was an entire doctrine, by order of the Supreme Court, requiring friendly greetings. Imagine how sad I was to learn that workers’ compensation isn’t nearly as friendly a place as I thought, once I learned what the Privette doctrine really was!
Recently, the Court of Appeals elected to publish its decision in McCullar v. SMC Contracting Inc. wherein it applied the Privette doctrine to an industrial injury case. Summarizing the doctrine, the Court of Appeal wrote “a strong presumption exists that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety.” In the McCullar case, plaintiff was an employee of a sub-contractor hired to install automatic sprinklers who slipped using a ladder placed on a floor covered in ice.
So why is there a case at all? This can’t be the first time that someone fell off a ladder at work, can it? Well, there’s more to the story than that. Mr. McCullar appeared at the jobsite to do the work of installing fire sprinklers but noticed there was ice all over the floor. He asked the SMC foreman about this, who told him that to go back to work and walked away. He asked his own employer’s foreman who told him to “get the job done.” At that point, he placed the ladder on the ice and the obvious happened.
He sued SMC on theories of negligence and failing to provide a safe work space, but SCM sought summary judgment. SMC invoked the Privette doctrine, not as a Soviet greeting but as grounds for escaping liability. I guess one could say that SCM said “Privette” but meant “Dasvidaniya.”
The trial court granted the motion and McCullar appealed, but found the relief he sought behind an iron curtain. The Court of Appeal acknowledged exceptions to the Privette doctrine: the “hirer” remains liable when it retains control over the independent contractor’s work and negligently exercises that control or when a landowner knows of a concealed hazard and fails to adequately warn the independent contractor.
SMC clearly wasn’t the landowner, and ice on the ground is not concealed, so the second exception wouldn’t apply. But did SMC exert control to the point of being liable? The Court of Appeal ruled it didn’t. Ultimately, the Court of Appeal ruled SMC did not exercise actual control because it did not have the right to, nor did it, exert control over the manner in which the work was done. Had SMC’s foreman stood over Mr. McCullar’s shoulder and told him how to install the sprinklers, perhaps there would have been a different result. Merely telling Mr. McCullar to “get back to work” was not sufficient to cause an exception to Privette.
What does that mean for us in the workers’ compensation world? Well, for one thing, employers will have an even bigger target on their backs, as the difficulty in collecting from contractors up the chain has been refreshed by the Court of Appeal in McCullar. Further, when these injuries occur due to the negligence of the general contractor, McCullar reaffirms that there is no subrogation potential for the negligence-free employer through applicant’s recovery in a third-party suit.
In short, dear readers, this is a great result for employers, but doesn’t do very much to help workers’ compensation defendants, as it cuts down the available pockets to satisfy applicants, plaintiffs, and, most importantly of all, their attorneys.
Till Wednesday, dear readers!
