A safety consultant retained by a California employer owes a duty of care to its client’s workers. The trial court incorrectly granted summary judgment on the ground that the consultant owed no duty of care because its allegedly negligent omissions were not affirmative misfeasance and therefore not “wrongful in their nature” for purposes of being tortious conduct under a state statute. Because the consultant had only an oral contract (established by a handshake) and could not dispositively show the limits on its scope of service with regard to its role with respect to safety training, meetings, and inspections, the appellate court concluded the question of liability must be left for a jury to determine at trial to consider how much responsibility the consultant assumed when it agreed to assist its client in carrying out workplace safety. It was not necessary to show that the consultant fully assumed safety obligations in order for it to be found liable. This decision demonstrates the importance of having a written contract with a well defined scope of service. Peredia v. HR Mobile Services, Inc., 25 Cal. App. 5th 680 (2018).
Text from the decision is most useful for explaining the analysis of the court.
“[Consultant] acknowledges it agreed to assist, and did assist, Double Diamond in carrying out its workplace safety obligations, but asserts it did not agree to fully assume Double Diamond’s workplace safety obligations to the employees working at the dairy…. In HR Mobile’s view, it agreed to and accepted a secondary role with respect to quarterly safety meetings, quarterly site safety inspections, accident investigations, and safety training, while Double Diamond remained responsible for compliance with safety, site safety inspections, correcting hazards, safety training and record keeping.”
“Based on this description of the elements of a negligent undertaking claim, plaintiffs contend HR Mobile owed a duty of care to the deceased on two grounds. First, HR Mobile undertook to perform safety duties that Double Diamond owed to its employees. Second, Double Diamond relied on HR Mobiles’ safety program and IIPP and, thus, did not consider or implement further safety measures.”
The appellate court stated:
“[To] establish a negligent undertaking cause of action against HR Mobile, plaintiffs must establish that (1) HR Mobile undertook to render services to Double Diamond; (2) the services rendered were of a kind HR Mobile should have recognized as necessary for the protection of the employees of Double Diamond; (3) HR Mobile failed to exercise reasonable care in the performance of its undertaking; (4) the failure to exercise reasonable care resulted in physical harm to [worker]; and (5) either (a) HR Mobile’s carelessness increased the risk of such harm, or (b) the undertaking was to perform a duty owed by Double Diamond to the employees, or (c) the harm was suffered because of the reliance of Double Diamond or the employees upon the undertaking (citation omitted). Under this formulation, a duty of care exists when the first, second and fifth elements are established.”
As explained by the court, the problem the consultant had in having the case dismissed on summary judgment was that it failed to demonstrate how the scope of its safety role to its client and the client’s employees was limited. There was no written contract or written scope of work. There was apparently not even any email or correspondence between the consultant and its client that could set forth evidence of the intended scope of service despite the fact that it was agreed that the consultant would be paid $24,000 per year for its services.
The undisputed facts were that the consultant actually rendered services to its client, and the services included conducting a site safety inspection and an employee training meeting. The court concluded that the consultant therefore failed to demonstrate that the plaintiffs would be unable to establish it had undertaken a duty to render services. The court concluded, “HR Mobile undertook to assist Double Diamond in carrying out its workplace safety obligations and accepted a role (the extent of which is disputed) in conducting safety inspections and safety training. Thus, it appears that [HR Mobile] undertook to provide services which were recognized as involving safety concerns.”
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 21, No. 1 (Jan 2019).
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