In Marin v. Department of Transportation, ordered published February 23, 2023, the First District Court of Appeal, Division 5 affirmed summary judgment for the defendant department. The department subcontracted to a company construction work on the department's highway. The contract expressly delegated matters of safety at the project to the subcontractor. The contract also provided that the department's residential engineer at the project site was authorized to make the final decision on questions concerning the contract, including as to work quality and acceptability and the manner of the performance at work. One night, the department, at the subcontractor's request, closed two lanes of the highway. The contractor marked the closure by using traffic signs and an arrow board, a cone pattern with reflective tape, multiple signs, and construction and street lights. Several department employees were on site. While an employee of the subcontractor was on the site working, a car operated by a drunk driver entered the closed lanes of the project site, and struck and killed the employee. The employee's survivors sued the DOT for vicarious liability for the alleged negligence of its employees, and for maintaining a dangerous condition of public property. The department moved for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689 because the department properly delegated workplace safety to the subcontractor. The plaintiffs contended that triable issues of fact existed on whether the department retained control over the construction project. The trial court granted summary judgment.
The appellate court agreed that the Privette doctrine barred liability. Under the doctrine, when the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to worker's compensation coverage, the doctrine of peculiar risk does not permit the employee to seek recovery of tort damages from the principal if the principal did not cause the injuries. The doctrine does not apply if the hirer of the contractor retains control of the site, and the exercise of retained control affirmatively contributed to the injuries. If the injury takes place after delegation of safety to the contractor takes place, the court presumes the contractor alone was responsible for any failure to take precautions. To rebut the presumption, the hirer must induce--not just fail to prevent--the contractor's injury-causing conduct, or the hirer's retained control must contribute to the injury independent of any contribution by the contractor. Here, the contract expressly delegating control to the contractor established the Privette presumption applied, shifting the burden to the plaintiff to raise a triable issue of fact. The portion of the contract giving the department final decision on questions concerning the contract did not raise a triable issue on whether retained control affirmatively contributed to the employee's death. Undisputed evidence established that the department did not direct or order the means and methods the subcontractor used to provide worker safety, did not have responsibility for setting up barriers, cones, or signs, and did not prevent the subcontractor from complying with its obligation to provide a safe work site. Evidence that the department could have authorized further safety measures, and expected the subcontractor's employees to learn and follow department safety policies, at most shows that the department passively permitted an unsafe condition. That is not affirmative contribution to the injuries.