The Privette Doctrine
In Privette v. Superior Court (1993) 5 Cal. 4th 689, the employee of a roofing contractor brought an action against the owner of an apartment building who had hired the plaintiff's employer to repair the building's roof. the plaintiff contended that the owner was liable under the doctrine of peculiar risk for injuries the plaintiff sustained while transferring hot tar.
The court held that when the injured employee of an independent contractor has recovered a workers' compensation award from the contractor, the hirer of the contractor cannot be held liable under the peculiar risk doctrine. (Id. at p. 694.)
The original purpose of that doctrine, the court observed, was to ensure that one who initiated activities posing a special hazard to third parties could not evade liability by hiring a contractor who might lack the wherewithal to pay damages for injuries resulting from the hazard.
In such a situation, the court continued, "it was believed that as between two parties innocent of any personal wrongdoing--the person who contracted for the work and the hapless victim of the contractor's negligence--the risk of loss occasioned by the contracted work was more fairly allocated to the person for whose benefit the job was undertaken.
Also, by spreading the risk of loss to the person who primarily benefited from the hired work, the courts sought to promote workplace safety, a concern of great significance to the public." (Ibid.)
The potentially harsh effect of the doctrine was ameliorated, the court noted, by the hirer's right to seek indemnity from the contractor. (Ibid.)
The court then observed that these rationales lose most or all of their force when the claimant is injured while employed by the contractor to perform the contracted-for work.
Such a claimant is "automatically entitled to recover benefits" under the workers' compensation laws, which serve essentially the same purposes as the peculiar risk doctrine. (Privette, supra, 5 Cal. 4th at pp. 696, 697, 701)
Therefore the imposition of what amounts to vicarious liability on the hirer "advances no societal interest that is not already served by the workers' compensation system." (Privette, supra, at p. 692.)
Moreover the hirer cannot obtain equitable indemnity from the contractor, because the contractor's payment of workers' compensation bars all liability in tort for on-the-job injuries to its own employees. (Id. at pp. 698, 701-702; see Lab. Code, 3864.)
This immunity from liability produces "the anomalous result that a nonnegligent person's liability for an injury is greater than that of the person whose negligence actually caused the injury." (Privette, supra, at p. 698.) Considering that the purposes of the doctrine are duplicated by the system of workers' compensation, of which the injured plaintiff has presumably taken full advantage, the notion that the doctrine should extend to employees of the contractor "does not withstand scrutiny." (Id. at pp. 701-702).