David Madden v. Summit View, Inc.
In the Court of Appeal of the State of California
11 August 2008 A117128

General Contractor not liable to Subcontractor’s employee for Premise Liability

David Madden was an electrician employed by Busch Electric. The latter was a subcontractor which was hired by Summit View, Inc., the general contractor, for a home construction project.

While at work, Madden fell from a raised patio when he was pulling some electrical wire for installation in the home. As a result, he was injured.

Madden sued the Summit View for premises liability, alleging that his injuries were caused by the general contractor’s negligence in failing to place a protective railing along the open side of the patio.

Summit View moved for a summary judgment. The trial court granted the same.

The court conclude that, “Although there is a triable issue as to whether Summit View retained control over general safety conditions at the site, no evidence was presented that would establish that Summit view affirmatively contributed, by direction, induced reliance or other affirmative conduct, to Madden’s injuries.”

“No evidence was presented that Summit View directed that a railing not be installed around the raised patio, nor the presence or absence of such a railing was an issue that Summit View even considered prior to the accident. The absence of the railing was open and obvious, so there was no induced reliance. Under the circumstances of this case, Summit View’s conduct was nothing more than a ‘mere failure to exercise a power’ to require the installation of a safety railing. As such, Summit View did not ‘affirmatively contribute’ to Madden’s injuries.”

Madden appeals, contending that the trial court erred in finding that there were no triable issues of material fact in the case.

The California Court of Appeal affirmed the trial court’s decision, citing Privette-Toland doctrine (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette); Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland).) which defined and limited the circumstances in which an independent (Busch Electric) contractor’s employee may recover in tort from the party (Summit View) hiring the contractor.

The Court held that the Privette court rejected the peculiar risk doctrine to the contractor’s employee.

Peculiar risk doctrine is an exception to the general rule that a person who hired an independent contractor was not liable to third parties for injuries caused by the contractor’s negligence in performing the work.

The court reasoned that “when the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the worker’s compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against a person who hired the independent contractor.”

Because the worker’s compensation scheme shields an independent contractor from tort liability to its employees, “applying the peculiar risk doctrine to the independent contractor’s employee’s would illogically and unfairly subject the hiring person, who did nothing to create the risk that caused the injury, to greater liability than that faced by the independent contractor whose negligence caused the employee’s injury.”