Altair Law partners Andje Medina and Jeremy Cloyd recently resolved a workplace violence lawsuit against the owner and general contractor of a residential construction project for $6,000,000. The plaintiff was assaulted by three individuals who entered the construction purportedly looking for work. The injured worker sustained a shoulder injury that prevented him from returning to work. He filed a lawsuit alleging that the owner and general contractor failed to provide reasonable security for a construction project in a high-crime neighborhood.
One of the common legal hurdles in a workplace injury case is the Privette doctrine (as set forth in Privette v. Superior Court (1993) 5 Cal.4th 689), under which the hirer of a contractor is not liable for on-the-job injuries sustained by that contractor’s employees unless some exception applies. The Hooker exception to Privette applies when the hirer “retains control” over the contractor’s work in a way that “affirmatively contributes” to the employee’s injury. Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 201-202.
Constructions contracts often provide essential evidence of “retained control.” For example, in the workplace assault case referenced above, the prime construction contract broadly required the general contractor “take reasonable precautions for the safety of, and…provide reasonable protection to prevent damage, injury or loss to…employees on the work and other persons who may be affected thereby.” In contrast, the subcontract between the general contractor and the company that employed the assaulted worker specifically excluded “site security.” This language as well as the owner and general contractor’s undertakings to provide security fencing and cameras showed they had “retained control” over site security.
The second element of the Hooker exception, affirmative contribution” means the hirer not just had the right to be involved but was involved in the injury-causing conduct. Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256. For example, if a general contractor creates a hazard or breaks a promise to correct a hazard, that may constitute “affirmative contribution.” Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439. In Tverberg, the Court of Appeal listed several circumstances that supported a finding of “affirmative contribution” where a worker had fallen into a hole, including (1) the hirer’s order to create the hole; (2) the hirer’s initial decision not to cover the hole; and (3) the hirer’s agreement to cover the hole when requested but failure to do so.
Discovery with these principles in mind is necessary to obtain evidence necessary to oppose a motion for summary judgment based upon the Privette doctrine. In the workplace assault case, emails by hirer documented earlier threats against workers and showed the hirer and property owner affirmatively acknowledging their responsibility to act. Meeting minutes over the course of the entire project established a timeline that showed the inadequacy of the owner’s and hirer’s efforts. A comparison of planned security measures and contemporaneous images of the worksite demonstrated security lapses.
Expert witness testimony may also prove important to show negligence exercise of retained control. Altair worked with a worksite safety expert qualified to discuss and explain the responsibilities for various companies on a worksite including guidelines for violence prevention in the workplace pursuant to Labor Code section 6401.7 and 6401.9. Altair also worked with a security expert who reviewed the construction records, witness testimony, and area crime history to help the jury understand the foreseeability of the assault given the lapses in security.
Workplace violence cases present unique legal challenges, particularly when dealing with doctrines like Privette and its exceptions. As demonstrated in the recent Altair Law case, thorough discovery, contractual analysis, and expert testimony play a crucial role in establishing liability and ensuring justice for injured workers. By carefully examining retained control, affirmative contribution, and security responsibilities, attorneys can effectively advocate for their clients and hold responsible parties accountable. This case underscores the importance of proactive safety measures in high-risk work environments and reinforces the need for strong legal strategies to protect workers’ rights.
