Just Because You Can, Doesn’t Mean You Should. The “Retained Control” Exception to the Privette Doctrine

Eating an entire bag of “family” sized potato chips in one sitting. Guilty.

Binge watching the entire new season of Black Mirror over a weekend. Guilty.

Eating an entire bag of “family” sized potato chips in one sitting, while binge watching the entire new season of Black Mirror over a weekend, because, “hey” I’m finally an empty nester, and can do what I like. Guilty.

As they say though, just because you can, doesn’t mean you should. The beauty of this  adage is that it has broad applicability to a cornucopia of situations, from empty nesters who, with the freedom of having the kids out of the house, feel that they can do anything they dang well please; to kids doing rather bone-headed things like jumping on a moving train (yes, guilty); and, as it turns out, can even apply in some cases to construction workers.

In Bowen v. Burns & McDonnell Engineering Company, Inc., 103 Cal.App.5th 759 (2024), the First District Court of Appeal examined whether an employee of a subcontractor who was injured while standing on a ladder that slipped could bring a claim against the general contractor under an exception to the Privette doctrine which limits a hirer’s liability for on-the-job injuries sustained by an independent contractor or its workers.

The Bowen Case

Eugene Bowen was an employee of second-tier subcontractor Team Industrial Services, Inc. (“Team”) who was hired by subcontractor HMT, LLC to inspect welding in a jet fuel tank whose floor was being replaced at the San Francisco International Airport. HMT had in turn been hired by general contractor Burns & McDonnell Engineering Company to replace the flooring in the jet fuel tank.

HMT’s subcontract with Team required that Team “furnish all material, equipment, and labor necessary to perform the work.”

Bowen’s job in all of this was to capture radiographic images of the wall sheets to examine the door welds. Prior to the “incident,” Bowen had worked inside the jet fuel tank on two separate occasions in February 2017. On February 15, 2017, Bowen entered into the tank a third time while another Team employee, Tom Polkinghorn, worked outside of the tank.

Before beginning work, both Bowen and Polkinghorn signed a “Job Safety Analysis” form in which they were supposed to identify hazards they observed both outside and inside the tank. The form also included disclaimer stating that the person signing the form should stop work “if conditions change and/or the job becomes unsafe.” Polkinghorn inspected the outside of the tank and identified hazards on the form. Bown was supposed to inspect the inside of the tank, but Polkinghorn is unsure if Bowen ever did. Bowen signed the form without exceptions.

While performing work inside the tank, Bowen observed a ladder and scaffolding which HMT had installed for HMT’s employee to use. Bowen did not notice a “green work permit” on the scaffolding that would have indicated that the scaffolding was built and ready for use. (Don’t do it Eugene!) Bowen also noticed that the ladder was “just tied off at one side at the very top,” that he had never seen a ladder tied off in this manner, and he did not shake or test the ladder. (Don’t do it Eugene!)

Nonetheless, Bowen decided to use the ladder to capture images from a higher elevation. Bowen was wearing a harness and clipped himself to the ladder and scaffolding. According to Bowen, the ladder “felt good going up,” but on his descent, after releasing the lanyard, “the ladder came out from underneath.” Bowen was about four feet from the floor when he fell. He fractured his hip and sustained other injuries as a result of the fall.

Bowen attributed the fall to the flexible metal floor at the bottom of the fuel tank and sand on the floor. The floor, which was comprised of pieces of metal welded together, would “raise up and down like a waterbed,” “flex” and “pop and move.” Bowen did not notice the sand on the floor before ascending the ladder.

Bowen received workers’ compensation benefits through Team. He also filed a lawsuit against HMT and Burns for premises liability, alleging that they negligently owned, maintained, and operated premises with dangerous conditions that caused his injuries, including a ladder that was not properly secured to the scaffolding, an unbalanced floor, and debris on the floor.

HMT and Burns each filed nearly identical motions for summary judgment arguing that under the Privette Doctrine they owed no duty of care to Bowen, that any duty of care was delegated to Team, and that an exception to the general duty of care existed when a danger was open and obvious.

In his opposition, Bowen argued that there were triable issues of material fact, namely, that it was not within the scope of his responsibility to inspect the scaffolding, ladder, or floor which were each concealed unsafe conditions, that there were triable issues of material fact as to whether HMT and Burns actively contributed to his injury when the scaffolding and ladder were installed by HMT, and that HMT and Burns retained control over the safety of the ladder and floors in the tank, failed to warn Bowen of the flexible nature of the steel floor, and represented to Bowen and Team that the ladder tied to the scaffolding was safe.

The trial court granted HMT and Burns’ motion for summary judgment finding that Burns did not own, install, or tag the scaffolding or ladder and did not direct or control the means by which work was to be performed by Team. As to HMT, the trial court found that HMT’s contract with Team required that Team “furnish all material, equipment, and labor necessary to perform the work” and that HMT installed the scaffolding and later for its own work and not that of Team.

Bowen appealed.

The Court of Appeal

On appeal before the First District Court of Appeals, Bowen argued that the case fell within an exception to the Privette doctrine known as the Hooker exception, whereby a hirer can be liable for on-the-job injuries sustained by an independent contractor or its workers if the hirer exercises retained control over any part of the contractor’s work in a manner that affirmatively contributes to the worker’s injuries.

However, as noted by the Court of Appeal, the Hooker exception, also known as the “retained control” exception to the Privette doctrine, does not impose liability on a hirer who “passively permit[s] an unsafe condition to occur,” but rather, required the hirer to have “affirmative[ly] contribut[ed]” to the unsafe condition:

Rather, for the retained control exception to apply, there must be something more—i.e., some indication the hirer directed that the contractor perform its work in a certain way or interfered with the means and methods by which the work was to be accomplished. For example, in McKown, the California Supreme Court imposed liability on a hirer who requested that an independent contractor use the hirer’s own defective forklift in performing the contractor’s work. Additionally, in some instances, an “omission may constitute an affirmative contribution,” such as where a hirer promises to undertake a particular safety measure and negligently fails to do so.

On appeal, Bowen argued that HMT “failed to meet its burden on summary judgment to show that there was no triable issue of material fact” regarding HMT’s retention of control over safety conditions” and, further, that  HMT “effectively” retained control because it was contractually responsible for the safety of its subcontractors and negligently set up a ladder and scaffolding for use by Bowen.

But, stated the Court of Appeal, “these arguments erroneously place the burden on HMT to demonstrate the lack of a triable issue of material fact when . . . it is Bowen’s burden to raise a triable issue of fact as to an exception to the Privette doctrine once defendants demonstrate the applicability of that doctrine.” In other words, Bowen had a duty to show that HMT (and Burns) were liable because they retained control over the job site and affirmatively contributed to the unsafe conditions which caused Bowen’s injuries, it was not HMT’s (or Burns) duty to show that they did not retain control over the job site and did not actively contribute to unsafe conditions which caused Bowen’s injuries.

Thus, held the Court of Appeal:

Bowen fails to meet this burden as he does not dispute the facts underlying the trial court’s ruling and still points to no evidence indicating that defendants affirmatively contributed to his injuries. For example, apart from arguing that HMT “negligently” set up the ladder, Bowen does not present any evidence that HMT directed that he perform his work in a certain way or that it interfered with the means by which he was to accomplish his work. Further, the evidence indicates that HMT did not require Bowen to use the ladder or scaffolding, and that prior to entering the fuel tank Bowen knowingly executed a JSA that listed hazards observed at the worksite and authorized him to stop work if he deemed the site or circumstances unsafe. Lastly, with respect to Bowen’s argument regarding HMT’s contractual responsibility for the safety of its subcontractors, Hooker established that this type of contractual obligation does not implicate the retained control exception where there is no evidence the hirer affirmatively contributed to the worker’s injuries.

The Court of Appeal also took issue with Bowen’s contention that HMT’s use of a safety tag system for its own scaffolding (Note: Apparently, there was a “green work permit” on the scaffolding, but recall, that Bowen did not notice a “green work permit” on the scaffolding when he climbed the ladder) was tantamount to a request that Team use HMT’s equipment. “A conclusion to the contrary,” held the Court, “would stretch the concept of a ‘request’ beyond absurdity.

Conclusion

So there you have it. Don’t climb a ladder – particularly a suspect one – just because it’s there. And if you do, don’t blame the person who left the ladder there.

For those of you versed in the law, you may have heard of the “attractive nuisance” doctrine, and this decision may seem contrary to that doctrine. Under the attractive nuisance doctrine, a property owner can be held liable for injuries to children caused by attractive nuisances on their property (think the empty pools used by skateboarders).

The attractive nuisance doctrine was abolished in California in 1970 in the case Beard v. Atchison, Topeka & Santa Fe Railway Company, 4 Cal.App.3d 129 (1970). In it’s place, however, remains a general common law obligation of property owners to keep their property in a safe condition, whether as to children, or adults.

The difference here is between the relationship of the parties. Rather than a general common law obligation by property owners to keep their property in safe condition as to the public in general, the Privette doctrine is grounded in the contractual relationship between hirers and those hired to perform work on property, and the notion that those hired to perform work on property have the skills and experience to safely perform that work.