Contractors liable for own safety, state Supreme Court rules

The state Supreme Court declined Thursday to create an exception to a rule about independent contractors, which presumes that they - and not the people who hire them - are responsible for their workplace safety.

There are two exceptions to the so-called Privette rule, wrote Justice Joshua P. Groban in a unanimous opinion. If a hirer retains any control over a contractor's work, and uses that control in a way that affirmatively contributes to the contractor's injury, the hirer can be held liable, Groban said. He added that hirers can also be held liable for a contractor's injuries if they knew about a hazard on the worksite and did not warn the contractor. Gonzalez v. Mathis et al., S247677.

The high court overturned a decision by the 2nd District Court of Appeal, which effectively created a third exception to the Privette rule by holding that a hirer can be held liable for an independent contractor's injuries "resulting from known hazards in certain circumstances," Groban wrote. The lower court specifically said, "The hirer can be held liable when he or she exposes a contractor (or its employees) to a known hazard that cannot be remedied through reasonable safety precautions."

In contrast, Groban said the high court concluded "that permitting liability under such circumstances, thereby creating a broad third exception to the Privette doctrine, would be fundamentally inconsistent with the doctrine."

Professional window washer Luis Gonzalez sued his client, John R. Mathis, in 2014, after he fell from the roof of Mathis' house and became seriously injured. Sole practitioner Wayne R. McClean of Woodland Hills filed the lawsuit.

Mathis was represented by attorneys at Latham & Watkins, LLP, Nelson Griffin, LLP, and Panish Shea & Boyle LLP.

Gonzalez said he slipped on the way to Mathis' skylight, which he could only reach by walking between a parapet wall and the edge of the roof. Although his company had cleaned Mathis' skylight for years, Gonzalez said Mathis' failure to properly maintain his roof made it more slippery and dangerous to walk on than usual. Gonzalez said he had warned Mathis' housekeeper and accountant that the roof needed to be repaired months earlier.

The high court rejected the argument by Gonzalez's appellate attorney, Evan D. Marshall of Herzog, Yuhas, Erhlich & Ardell, APC, that Mathis is responsible for the contractor's injury. Gonzalez said Mathis hired him to clean his windows, not to maintain the roof in a reasonably safe condition. But the court countered that by hiring Gonzalez as a contractor, Mathis delegated "to Gonzalez a duty to provide a safe workplace to his workers and to perform the work for which he was retained in a safe manner."

Mathis was represented by Michael E. Bern, a partner at Latham & Watkins LLP.

The court also rejected the contractor's argument that Mathis was liable under the first exception to the Privette rule. Because Mathis merely neglected to maintain his roof, and did not take any affirmative actions to contribute to Gonzalez's injury, he is not responsible for the injury, the court said.

The court clarified the scope of its opinion. "We do not decide whether there may be situations, not presented here, in which a hirer's response to a contractor's notification that the work cannot be performed safely due to hazardous conditions on the worksite might give rise to liability," Groban wrote. "We decide only that neither Mathis nor any member of his staff exercised any retained control over Gonzalez's work in a manner that affirmatively contributed to Gonzalez's injury simply by being made aware that the roof was slippery and needed repair."