When a worker employed by an independent contractor is hurt on someone else's property, the injured worker usually receives comp benefits from the contractor's carrier and then looks for a third-party defendant. In California, a hirer or property owner who engaged the contractor will often invoke the Privette doctrine, which presumes that the hirer delegated responsibility for workplace safety to the contractor. Understanding how far that presumption extends, and where it ends, is essential for plaintiff counsel evaluating construction, maintenance, and industrial injury claims.
The Foundation: Privette
Privette v. Superior Court, 5 Cal.4th 689 (1993), held that a person who hires an independent contractor generally is not liable to the contractor's employees for injuries arising from the contracted work. The court reasoned that the contractor's employees are covered by workers' compensation, paid for through the contractor's price, and that allowing tort recovery against the hirer would give the employee a windfall unavailable to other workers. The hirer, in effect, pays for comp coverage through the contract price.
Later decisions extended the logic and carved out limits, producing a body of law that attorneys should read as a set rather than a single rule.
Retained Control: Hooker and Sandoval
In Hooker v. Department of Transportation, 27 Cal.4th 198 (2002), the court held that a hirer that retains control over safety conditions may be liable to a contractor's employee, but only if the hirer's exercise of that control affirmatively contributed to the injury. Merely retaining the right to control, or failing to exercise it, is not enough. In Hooker, the court found that a state agency's exercise of control over traffic and equipment did not affirmatively contribute to the death of a crane operator, so there was no liability.
More recently, Sandoval v. Qualcomm Inc., 12 Cal.5th 256 (2021), held that a hirer's failure to exercise retained control, such as a failure to require specific safety measures, does not create liability on its own. The plaintiff must show an affirmative contribution, which can include actively directing the manner of work, or conduct that induced the contractor not to take safety precautions. Sandoval also described the hirer's omission as insufficient where the contractor was responsible for the safety measure. The decision tightened the doctrine for plaintiffs who rely on nonfeasance.
Concealed Hazards and Premises Cases
The doctrine also governs premises conditions. Earlier cases recognized that a landowner could be liable to a contractor's employee for a known, concealed hazard that the contractor could not discover and avoid. In Gonzalez v. Mathis, 12 Cal.5th 29 (2021), the court held that the Privette presumption applies even where the hazard on the premises was known to the landowner, and that the owner is not liable unless the owner exercised retained control that affirmatively contributed to the injury. Practitioners should read it closely, because it narrowed what had been seen as a safe route for premises plaintiffs.
The result is that a plaintiff generally must identify some active conduct by the hirer, not just a hazard it knew about, to proceed past summary judgment.
Building the Case Around Affirmative Conduct
Since affirmative contribution is the key, discovery should aim at what the hirer actually did on the job. Possible theories include:
- The hirer directed the method or sequence of work in a way that created the danger.
- The hirer supplied defective equipment, or required the use of equipment that was unsafe.
- The hirer instructed the contractor to forgo a safety measure, or discouraged the contractor from taking one.
- The hirer's safety personnel actively supervised and directed workers on site, beyond general oversight.
- The hirer changed conditions at the site during the work in a way that created a new hazard.
Obtain the contract, safety plan, site rules, emails, daily logs, and meeting notes. Depose the hirer's site representatives and ask for specific instances in which they gave instructions on how the work was done. Also look at who selected or approved the contractor and whether the hirer knew of the contractor's lack of qualifications, though courts apply additional limits to negligent hiring theories in this context.
Other Defendants Outside the Doctrine
The doctrine covers a hirer's liability to the contractor's employees. It does not shield others. Consider equipment manufacturers, suppliers, architects, engineers, other trades on the site, and utility owners. Product claims for defective machinery or fall protection are not barred by the doctrine, and a subcontractor employed by a different contractor is a separate party with its own duty. Our product liability coverage addresses claims against manufacturers of construction equipment.
Also consider whether the injured worker was an employee of the hirer in disguise, for instance through misclassification or a labor-supply arrangement, because then the exclusive remedy bar and comp issues change. For the comp side, including employer liens and credits that arise when a third-party claim succeeds, see our workers' compensation category.
Summary Judgment Practice
Defendants commonly bring early motions invoking the presumption. Respond with evidence showing a triable issue on affirmative contribution, supported by declarations and deposition excerpts. Generic claims of oversight are rarely enough. Be precise about the conduct, who did it, and how it caused the injury. Preserve all alternative theories, and conduct discovery from contractor personnel who witnessed the hirer's directions.
Outside California
Other states handle the same problem differently, through nondelegable duty doctrines, inherently dangerous activity exceptions, or retained control rules under the Restatement (Second) of Torts. If your case involves multiple states, evaluate which law governs. In every jurisdiction, verify current authority, since this area has been reshaped by recent decisions.