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While working for a subcontractor on a school construction site on a rainy day, the plaintiff, Brannan, slipped on wet scaffolding left by the general contractor, Lathrop, injuring his back. The scaffolding was left on site by Lathrop to allow another sub to finish framing a bridge.
Brannan, who also filed a workers’ compensation claim, sued Lathrop for negligence. He argued that since the scaffolding obstructed his work, he was forced to maneuver under it to lay bricks, and that Lathrop should have removed it as a safety precaution. He also argued that Lathrop should have called a “rain day” to protect workers from injuries caused by slippery surfaces.
The trial court applied the Privette-Toland doctrine which provides that employees of an independent contractor who are hurt on the job cannot sue the general contractor who hired the subcontractor to do the work. The rationale of Privette-Toland is that since employees can recover for their injuries through Workers’ Compensation from their employer, it is unfair for them to recover from the general contractor as well. The court found that Lathrop was not liable for Brannan’s injuries. The appeals court agreed.
Brannan appealed, urging the court to find that his case fell within an exception to this general rule in cases where the general contractor, through some affirmative conduct, is actively involved in or controls the work of the subcontractor and its employees. In those cases, the general contractor may in fact be sued.
The court found no evidence that Lathrop controlled the work to such an extent as to fit within the exception or that it knew before Brannan’s fall that he or other employees were climbing over the scaffolding, or that it posed a safety hazard. It would have been different had Brannan’s foreman asked Lathrop to move the scaffolding, and Lathrop had promised to do so but never followed through – but this did not happen. Further, the court said that Lathrop’s failure to call a “rain day” was insufficient to impose liability. Brannan’s foreman himself could have called a rain day without Lathrop’s approval if he thought conditions were unsafe. Therefore, Lathrop was not liable for Brannan’s injuries.
Brannan v. Lathrop Construction Associates, Inc. (2012) 206 Cal.App.4th 1170