Survivor of subcontractor's employee may claim general contractor's failure to close road created direct hazard to public

Law Reporter, Oct 2002

Ray v. Silervado Constructors, 120 Cal. Rptr. 2d. 251 (Ct. App. 2002).

A California appellate court held that the rationale of Privette v. Superior Ct., 854 P.2d 721 (Cal. 1993) and Toland v. Sunland Hous. Group, Inc., 955 P.2d 504 (Cal. 1998)-- cases holding that the peculiar risk doctrine generally does not extend to injuries suffered by a subcontractor's employees-did not bar a claim for failure to close a road that posed a hazard to the public.

Here, the employees of a company that had subcontracted to build several bridges in a highway construction project were securing construction materials. One of the subcontractor's employees-who was assigned to and traveling from another bridge project-entered a roadway, stopped his truck to block traffic, and began to remove debris from the traffic lane. He was killed by falling debris. His wife sued the general contractor and the project owner. The trial court found the worker's death was caused by falling wood and, therefore, barred under Privette and Toland.

Reversing, the appellate court noted that, in reviewing the Privette/Toland rationale, the state supreme court had explained that the peculiar risk doctrine imposes liability on a person who hires an independent contractor for injuries caused by the contractor's negligence. However, the doctrine does not extend to the hired contractor's employees because the contractor is exempt from tort liability under workers' compensation law. Therefore, applying the doctrine to the contractor's employees would subject the hiring party, which had not created the risk, to greater liability than the contractor, which had created it.

Furthermore, the court noted that, in subsequent decisions, the state high court had indicated that contractors' employees are barred from pursuing claims against owners and hiring parties where the claims were based on vicarious or derivative liability theories. Nevertheless, the court had also held that claims alleging that owners' and hiring parties' actions affirmatively contributed to injuries of the contractor's employee could be maintained in some instances because such liability does not derive from the contractor's acts or omissions. Consequently, the court said, the Privette/Toland rationale does not bar all direct liability actions filed by contractor's employees against property owners and general contractors.

Here, summary judgment was inappropriate in that plaintiffs had framed their cause of action on a theory of direct, not vicarious, liability. The court explained that plaintiffs' claim was premised on a theory that the worker's death resulted from defendant's failure to close the roadway so as to bar individuals from crossing under the bridge when it was unsafe to do so. The court concluded plaintiffs presented triable issues regarding whether defendant had breached a duty to close the road and whether the breach caused the worker's death, noting that plaintiffs argued the worker would not have been struck by falling debris while trying to protect others had the road been closed.

Plaintiffs' Counsel

Donna Silver, Long Beach, Cal.

*Joel Krissman, Wilmington, Cal.