20th Feb 2017

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An owner-developer is a property owner that obtains permits for the construction job at his or her own home and serves as the person responsible for the construction, similar to a general contractor.  After obtaining a building permit for the house, the owner may serve as his own general contractor, thereafter retaining,  licensed subcontractors to complete other work.  An owner may be at the site daily, keep track of progress, and ask its subcontractors whether things are ready so that he can call for inspections.  [Regalado v. Callaghan (2016) 3 Cal. App. 5th 582, 587 (owner installed underground pool equipment, retaining pool builder thereafter to construct the pool; negligence in not obtaining appropriate permits)]

Owner liability to employee of retained independent contractor

An owner/general contractor who hires a subcontractor, is not liable for injuries that occur to the subcontractor’s employees.  There are certain exceptions.  See Brannan v. Lathrop Construction (2012) 206 Cal. App. 4th 1170, 1175-1176.

Exception to owner’s nonliability

An owner/independent contractor could be held liable for injuries to the subcontractor’s employee resulting from the owner’s negligence under the theory the hirer retained control of the work but negligently exercised that control.  The Supreme Court held a hirer above an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at the work site, but was liable to such an employee insofar as its exercise of retained control affirmatively contributed to an employee’s injuries.  [Hooker v. Department of Transportation (2002) 27 Cal. 4th 198; Brannan v. Lathrop Construction (2012) 206 Cal. App. 4th 1170, 1176, citing and discussing Hooker v. Department of Transportation]

Affirmative contribution; negligent failure to perform compared

Affirmative contribution need not always be in the form of actively directing a contractor or contractor’s employee.  There will be times when a hirer will be liable for its omission.  For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.  Further “affirmative contribution” occurs where a general contractor “is actively involved in or asserts control over, the manner of performance of the contracted work”.   Such an omission of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished.  [Regalado v. Callaghan (2016) 3 Cal. App. 5th 582, 590]  See § I23.02 INDEPENDENT CONTRACTOR [AS LIABLE FOR ACTS OF SUBCONTRACTOR]; § N4 NEGLIGENCE OF INSURED [§ N4:3 Negligent acts and omissions as “accident”].

Use Note to CACI 1009B

The affirmative contribution need not be active conduct by may be in the form of an omission to act.  The advisory committee believes that the “affirmative contribution” requirement simply means that there must be causation between the hirer’s conduct and the plaintiff’s injury.  Because “affirmative contribution” might be construed by a jury to require active conduct rather than a failure to act, the committee believes that its standard “substantial factor” element adequately expresses the “affirmative contribution” requirement.  [Regalado v. Callaghan (2016) 3 Cal. App. 5th 582, 594-595]

Jury instructions

CACI 400, 401 (negligence, substantial factor).  CACI 1009B (owner-builder “hirer” liability).

Workers’ compensation

When a person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is compensable under the workers’ compensation law and therefore the law should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.  Thus, subject to certain exceptions, when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur to the subcontractor’s employees.  [Regalado v. Callaghan (2016) 3 Cal. App. 5th 582, 589]  The exceptions are discussed in Brannan v. Lathrop Construction (2012) 206 Cal. App. 4th 1170, 1175-1176]  Compare § W25 WORKERS’ COMPENSATION.

References in bold are to Mr. Cornblum’s text CALIFORNIA INSURANCE LAW DICTIONARY AND DESK REFERENCE, 2016 Edition, published by ThomsonReuters (1-800-344-5008 to order 3-Volume text).

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