General Contractor on a housing project hired two subcontractors, one of whom installed scaffolding for use on the project. An employee of one of the Subs fell from the scaffolding and sued the GC for his injuries. Trial judge, relying on what is known as the Privette doctrine, granted GC’s motion for summary judgment finding that GC is not liable to a sub’s employee for injury from an unsafe workplace unless the GC affirmatively contributed to the conditions that led to the injury. This was reversed on appeal with the court holding there were questions of material fact that must be determined in a trial regarding whether the GC retained control over the jobsite safety via its safety plan and daily walk-throughs. Brown v. Beach House Design & Development, 85 Cal.App.5th 516 (2022).
Evidence that the GC was responsible for procuring and maintaining the scaffolding for use by the subcontractors included testimony by one of the subcontractors had he had never set up scaffolding and didn’t include cost for scaffolding in their bid, and that in the Sub’s experience GCs usually provided scaffolding for use by all subcontractors on the site. Another subcontractor on the project, A&D Plastering Company, set up the scaffolding and after completing his work, the scaffolding remained on the project and was used by others, including the employee of the subcontractor who fell. The GC knew the scaffolding was being used by all labor at the site. A&D had no agreement with the GC to allow other subs to use its scaffolding.
The GC didn’t inspect A&D’s scaffolding after it was installed because “that wasn’t our role or duty in the contract with A&D. Their responsibility was to furnish the scaffold. They took full responsibility to supervise the scaffold and maintain it.” The GC testified that it “never inspected the scaffolding to ensure it was in a safe condition because that was A&D’s responsibility.”
“A&D was not on site every day; to the contrary, he said A&D’s plastering work took only about six months, but the scaffolding remained on the job site for at least a year. Linden acknowledged that A&D employees did not come to the site to inspect the scaffolding on days they were not performing work, and he said that during periods when A&D was not on site, he was not aware that anyone was making sure the scaffolding was safe.”
There was evidence that the GC instructed A&D to erect scaffolding for the use of the other subcontractor whose employee fell. A GC employee authenticated a weekly task document prepared by Beach House stating that during the week of June 12, 2017, A&D “[s]et scaffolding at West and South Elev for Mezz desk fascia and trim installation,” “[s]et scaffolding on top of Canopy for South elev siding installation,” and “[i]ncrease[d] scaffolding height at East front elev for siding installation.”
The court stated that GC failed in its summary judgment motion to demonstrate the absence of trial issues of material fact.
Where a general contractor contracts with a third party to supply equipment for the use of its subcontractors, the contractor’s potential liability to its subcontractors’ employees for defective equipment turns on the extent of the contractor’s delegation to the third party—that is, whether the contractor “fully delegate[d]” to the third party the duty to maintain the equipment in a safe condition (citation omitted).” The court that “If the general contractor fully delegates to the third party the duty to provide safe equipment, the third party is responsible for any failure to take reasonable precautions to keep the equipment in a safe condition. But if the general contractor does not fully delegate the task of providing safe equipment, it may be liable in tort to an employee.”
The court found there were several trial issues of material fact. There were triable issues of fact as to whether Beach House undertook to supply scaffolding for O’Rourke and its employees. There were triable issues as to whether Beach House fully delegated to A&D the responsibility to provide and maintain the scaffolding.
The subcontract with A&D did not clearly set forth who was responsible for inspecting and maintaining he scaffolding after its installation – including the one-year period that the scaffolding remained on the property and was by used by the Plastering subcontractor. One paragraph of the A&D subcontract required it to provide safety controls while A&D employees used the scaffolding but it did not clearly require A&D to provide such controls at other times and for other subcontractors using the scaffolding.
There were also triable issues as to whether Beach House exercised retained control in a manner that affirmatively contributed to plaintiff’s injury.
With regard to the whether the plaintiff was legally required to alledge affirmative misconduct by the GC the court explained,
“the critical inquiry for purposes of evaluating the exercise of retained control “is the relationship between the [general contractor’s] conduct and the [subcontractor’s] conduct, not whether the [general contractor’s] conduct, assessed in isolation, can be described as ‘affirmative conduct.’ ” (citation omitted),That is, “neither ‘actual exercise’ nor ‘affirmative contribution’ requires that the [general contractor’s] negligence (if any) consist of an affirmative act. The [general contractor’s] negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty under (the law).
For these reasons, the court reversed the summary judgment and sent the case back to be tried on its merits.
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 ConstructionRisk 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 Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 25, No. 5 (July 2023).
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