Problem

At issue was a split among the Courts of Appeal over whether a hirer's breach of a nondelegable statutory or regulatory duty, in and of itself, can amount to "affirmative contribution" to the contractor's employee's injuries sufficient for the injured plaintiff to avoid summary judgment under the Privette doctrine.  Some appellate courts said "yes," including the Court of Appeal in Seabright, and others said "no," holding that some other evidence of affirmative conduct by the hirer is required before plaintiffs can avoid summary judgment.

Solution

But the Supreme Court today delivered a defense decision that is broader than the appellate court split and broader than the precise question on which the Court granted review.  It held that the Court of Appeal in Seabright erred by finding that the Labor Code statutes and underlying regulations created a nondelegable duty on the part of the hirer to the hired contractor's employees.  As Justice Kennard, writing for the majority put it, "we reject the premise that the tort law duty, if any, that a hirer owes under Cal-OSHA and its regulations to the employees of an independent contractor is nondelegable."  Rather, "as an incident of an independent contractor's hiring" it is implied that the hirer delegated to the contractor "any tort law duty of care . . . under Cal-OSHA and its regulations to ensure workplace safety for the benefit of [the contractor's] employees."

Significance

The Seabright decision eliminates what had become a pervasive tactic utilized by the plaintiffs' bar to avoid application of the Privette doctrine -- the characterization of the Cal-OSHA provisions as a nondelegable duty.  And the high court's decision, focusing as it does on "any tort law duty [the hirer] owes to the contractor's employees" opens the door for the same principle of delegation to apply beyond the Cal-OSHA context to other statutes and regulations.

This summary was provided by appellate attorney Gary A. Watt of Archer Norris.  Gary wrote an amicus brief and argued on behalf of the California Building Industry Association in Seabright.  He can be reached at gwatt@archernorris.com