What Is the Privette Doctrine ?

In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court examined the "peculiar risk doctrine," an exception to the common-law rule of nonliability of property owners for injuries to third parties resulting from work that was negligently performed on the property by independent contractors. The peculiar risk doctrine made property owners liable for injuries to an independent contractor's employees performing inherently dangerous work on the owner's land. It was believed that allocating the risk of loss to the hiring property owner, for whose benefit the work was performed, would more fairly ensure compensation to the innocent victim and promote workplace safety. In Privette, the court held that those justifications did not apply when the contractor's employee could recover from the workers' compensation system. "In the case of on-the-job injury to an employee of an independent contractor, the workers' compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk." (Id. at p. 701.) For purposes of analysis under Privette, "there is no legal distinction between a general contractor and a landowner who hires independent contractors; both are 'hirers' within the meaning of the doctrine." (Michael v. Denbeste Transp., Inc. (2006) 137 Cal.App.4th 1082, 1097.) In subsequent decisions, the Privette rule was refined. In Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, a subcontractor's employee sued the general contractor for on-the-job injuries asserting Privette did not bar recovery for direct liability but only for vicarious liability. The court rejected the argument, holding that Privette applies whether the theory of recovery is based on the general contractor's failure to take special precautions as provided in a contract or on the general contractor's failure to provide in the contract for the taking of special precautions. "In either situation, it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation . . . ." (Id. at p. 267.) In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, the Supreme Court slightly expanded the scope of a hirer's duty by holding that the hirer of an independent contractor can remain liable to the contractor's injured employee if the hirer not only retains control over the details of the work but exercises that control in a manner that "affirmatively contributed" to the employee's injuries. (Id. at p. 210.) Merely retaining the ability to control or direct the work, however, without the actual exercise of that authority, is insufficient to impose liability on the hirer. (Id. at p. 215.) Such is the case in the instant matter.