Supreme Court of California Justia
Citation 52 Cal. 4th 590, 258 P.3d 737, 129 Cal. Rptr. 3d 601

Seabright Ins. v. US Airways


Filed 8/22/11


IN THE SUPREME COURT OF CALIFORNIA

SEABRIGHT INSURANCE COMPANY, )

Plaintiff and Appellant,
S182508
v.
Ct.App. 1/4 A123726
US AIRWAYS, INC.,
City and County of San Francisco
Defendant and Respondent;
Super. Ct. No. CGC-06-458707
ANTHONY VERDON LUJAN,
Intervener and Appellant.
____________________________________)

Generally, when employees of independent contractors are injured in the
workplace, they cannot sue the party that hired the contractor to do the work.
(Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).) Here, we consider
whether the Privette rule applies when the party that hired the contractor (the
hirer) failed to comply with workplace safety requirements concerning the precise
subject matter of the contract, and the injury is alleged to have occurred as a
consequence of that failure. We hold that the Privette rule does apply in that
circumstance.
By hiring an independent contractor, the hirer implicitly delegates to the
contractor any tort law duty it owes to the contractor’s employees to ensure the

1



safety of the specific workplace that is the subject of the contract. That implicit
delegation includes any tort law duty the hirer owes to the contractor‘s employees
to comply with applicable statutory or regulatory safety requirements.1 Such
delegation does not include the tort law duty the hirer owes to its own employees
to comply with the same safety requirements, but under the definition of
―employer‖ that applies to California‘s workplace safety laws (see Lab. Code,
§ 6304),2 the employees of an independent contractor are not considered to be the
hirer‘s own employees.
The Court of Appeal here erred in reversing the trial court, which had
granted summary judgment for defendant.
I.
Defendant US Airways uses a conveyor to move luggage at San Francisco
International Airport. The airport is the actual owner of the conveyor, but US
Airways uses it under a permit and has responsibility for its maintenance. US
Airways hired independent contractor Lloyd W. Aubry Co. to maintain and repair
the conveyor; the airline neither directed nor had its employees participate in
Aubry‘s work.
The conveyor lacked certain safety guards required by applicable regulations.
Anthony Verdon Lujan, who goes by the name Verdon, was inspecting the

1
Not present here is a situation in which the relevant statutes or regulations
indicate an intent to limit the application of Privette, supra, 5 Cal.4th 689, or
preclude delegation of the tort law duty, if any, that the hirer owes to the
contractor‘s employees.
2
All further undesignated statutory references are to the Labor Code.
2



conveyor as an employee of Aubry, and his arm got caught in its moving parts.
Plaintiff SeaBright Insurance Company, Aubry‘s workers‘ compensation insurer,
paid Verdon benefits based on the injury and then sued defendant US Airways,
claiming the airline caused Verdon‘s injury and seeking to recover what it paid in
benefits. Verdon intervened as a plaintiff in the action, alleging causes of action
for negligence and premises liability.
Defendant US Airways sought summary judgment based on Privette, supra,
5 Cal.4th 689, and Hooker v. Department of Transportation (2002) 27 Cal.4th 198
(Hooker). In Hooker, we held that the hirer of an independent contractor can be
liable for a workplace injury of the contractor‘s employee if the hirer retained
control over the contractor‘s work and exercised that control in a way that
―affirmatively contribute[d]‖ to the employee‘s workplace injury. (Hooker, at
p. 213.) Defendant US Airways argued that it did not ―affirmatively contribute[]‖
to employee Verdon‘s injury.
Insurer SeaBright and employee Verdon (plaintiffs) countered with a
declaration by an accident reconstruction expert, who stated that the lack of safety
guards at ―nip points‖ on the conveyor violated Cal-OSHA regulations (see § 6300
et seq. [Cal. Occupational Safety & Health Act of 1973 (Cal-OSHA)]; Cal. Code
Regs., tit. 8, §§ 3999, 4002 [regulations governing conveyor safety]) and that the
safety guards would have prevented Verdon‘s injury.
The trial court struck plaintiffs‘ declaration insofar as it discussed
causation.3 It found no evidence that US Airways ―affirmatively contribute[d]‖ to

3
The sufficiency of plaintiffs‘ showing on causation might provide an
alternative basis for upholding the trial court‘s grant of summary judgment for

(footnote continued on next page)
3



the accident (Hooker, supra, 27 Cal.4th at p. 213) and granted summary judgment
for defendant US Airways. The Court of Appeal reversed.
The Court of Appeal held that, under Cal-OSHA, defendant US Airways
had a nondelegable duty to ensure that the conveyor had safety guards, and that
the question whether the airline‘s failure to perform this duty ―affirmatively
contribute[d]‖ to plaintiff‘s injury (Hooker, supra, 27 Cal.4th at p. 213) remained a
triable issue of fact, precluding summary judgment. The court noted conflicting
views among the Courts of Appeal as to how our holdings in Privette, supra,
5 Cal.4th 689, and Hooker, supra, 27 Cal.4th 198, apply when the hirer of the
independent contractor failed to comply with Cal-OSHA regulations, and the court
followed a line of decisions holding that such omissions can expose the hirer to
liability.
To resolve the conflict in the Courts of Appeal, we granted defendant US
Airways‘s petition for review.
II.
Two questions govern the assignment of tort liability: Did the defendant owe
the plaintiff a duty of care? If so, what standard of care applied? (Lugtu v.
California Highway Patrol (2001) 26 Cal.4th 703, 718; Ramirez v. Plough, Inc.
(1993) 6 Cal.4th 539, 546.) A plaintiff can rely on statutory law to show that a
defendant owed the plaintiff a duty of care. (See Elsner v. Uveges (2004)
(footnote continued from previous page)

defendant US Airways. (See conc. opn. of Werdegar, J., post, pp. 1-3.) Like the
Court of Appeal, we express no view on the question.
4



34 Cal.4th 915, 927 & fn. 8.) Here, plaintiffs contend (1) that Cal-OSHA imposed
on defendant US Airways a duty of care, (2) that this duty of care extended to
hired contractor Aubry‘s employees, and (3) that defendant could not delegate the
duty to Aubry. Plaintiffs rely on a principle set forth in the Restatement Second of
Torts: ―One who by statute or by administrative regulation is under a duty to
provide specified safeguards or precautions for the safety of others is subject to
liability to the others for whose protection the duty is imposed for harm caused by
the failure of a contractor employed by him to provide such safeguards or
precautions.‖ (Rest.2d Torts, § 424.)
Defendant US Airways assumes that Cal-OSHA imposed on it a duty of care
that extended to the employees of Aubry, an independent contractor, arguing that
even if it had such a duty, our decisions, beginning with Privette, supra, 5 Cal.4th
689, reflect a strong policy ―in favor of delegation of responsibility and assignment
of liability‖ to independent contractors. (Kinsman v. Unocal Corp. (2005)
37 Cal.4th 659, 671 (Kinsman).)
Whether Cal-OSHA imposes on an employer like US Airways a tort law
duty of care that extends to the employees of other parties such as independent
contractors is a question that remains unsettled. In De Cruz v. Reid (1968)
69 Cal.2d 217, 228–229 (De Cruz), this court answered the question in the
affirmative, holding that an employer can be liable in tort to the employees of other
parties for violations of Cal-OSHA and its regulations. But the statutory basis of
that 1968 holding was arguably undermined by significant changes in the law in
1971 (see Stats. 1971, ch. 1751, §§ 2–3, pp. 3780–3781 [amending § 6304 and
adding § 6304.5]) and in 1999 (see Stats. 1999, ch. 615, § 2, p. 4337 [amending
§ 6304.5]).
Under current law, a plaintiff may rely on Cal-OSHA requirements, in the
same manner that it can rely on other statutes and regulations, in an attempt to
5

show that a defendant owed the plaintiff a duty of care (§ 6304.5), but the law now
defines ―employer‖ more narrowly than it did before 1971. Before 1971, the
Legislature‘s definition of the term ―employer‖ included ―every person having
direction, management, control, or custody of any employment, place of
employment, or any employee.‖ (Stats. 1937, ch. 90, § 6304, p. 306.) This broad
definition of employer was an underpinning of this court‘s 1968 holding in De Cruz,
supra, 69 Cal.2d 217, that employers can be liable in tort to the employees of other
parties for violations of workplace safety requirements. (See id. at pp. 228–229.)
Through a 1971 amendment to section 6304, the Legislature narrowed its previous
broad definition of employer, leaving simply a cross-reference to section 3300.
(See Stats. 1971, ch. 1751, § 2, p. 3780.) As relevant here, section 3300 defines an
employer as ―[e]very person . . . which has any natural person in service.‖ (§ 3300,
subd. (c).) The effect of these changes on our holding in De Cruz is uncertain, but
we have never held under the present law that a specific Cal-OSHA requirement
creates a duty of care to a party that is not the defendant‘s own employee.
Here, however, as noted earlier (see p. 5, ante), US Airways assumes that
Cal-OSHA imposed on it a tort law duty of care that extended to Aubry‘s
employees, and it argues that it delegated any such duty to Aubry as part of its
contract hiring Aubry to maintain and repair the conveyor. Thus, the issue here
turns on whether defendant US Airways could and did delegate to independent
contractor Aubry any duty it owed to Aubry‘s employees to comply with the
safety requirements of Cal-OSHA.
In analyzing this issue, we first consider (in pt. II.A., post) our decisions,
beginning with Privette, supra, 5 Cal.4th 689, that have addressed the liability of
an independent contractor‘s hirer for workplace injuries to the contractor‘s
employees. Our decisions recognize a presumptive delegation of responsibility for
workplace safety from the hirer to the independent contractor, and a concomitant
6

delegation of duty. We next consider (in pt. II.B., post) the applicability of the
nondelegable duties doctrine under which certain duties may not be delegated to an
independent contractor. We find that doctrine inapplicable here, and we therefore
conclude that an independent contractor‘s hirer implicitly delegates to that
contractor its tort law duty, if any, to provide the employees of that contractor a safe
workplace.4
A.
Our 1993 decision in Privette, supra, 5 Cal.4th 689, explained: ―At common
law, a person who hired an independent contractor generally was not liable to third
parties for injuries caused by the contractor‘s negligence in performing the work.
[Citations.] Central to this rule of nonliability was the recognition that a person
who hired an independent contractor had ‗ ―no right of control as to the mode of
doing the work contracted for.‖ ‘ ‖ (Id. at p. 693.) That was the common law rule,
but ―[o]ver time, the courts . . . created so many exceptions to this general rule of

4
We are only discussing the delegation of any tort law duty the hirer might
have. The concurring opinion argues that the delegation-of-duty issue we decide
here is ―at least partly a function of legislative intent,‖ because the hirer‘s tort law
duty, if any, is one based on a statute. (Conc. opn. of Werdegar, J., post, p. 4.)
We see no indication, however, ―that the Legislature intended to bring about a
sweeping enlargement of the tort liability of those hiring independent contractors
by making them civilly liable for Cal-OSHA or other safety violations resulting in
injuries to the contractors‘ employees.‖ (Madden v. Summit View, Inc. (2008) 165
Cal.App.4th 1267, 1280.) We agree that US Airways‘s tort law duty, if any, to
Aubry‘s employees is one derived by the courts from a statute. Nevertheless, it
remains a tort law duty, and whether it is delegable is a common law question.
Here, the statute only comes into play by way of the common law doctrine that
permits courts to use a statute to establish the existence of a tort law duty of care.
(See, e.g., Elsner v. Uveges, supra, 34 Cal.4th at p. 927; Clinkscales v. Carver
(1943) 22 Cal.2d 72, 75.)
7



nonliability that ‗ ― ‗the rule [came to be] primarily important as a preamble to the
catalog of its exceptions.‘ ‖ ‘ ‖ (Ibid.) Privette began limiting those exceptions.
In Privette, supra, 5 Cal.4th 689, a property owner hired a roofing company
to install a new roof, and an employee of the roofing company was burned when
attempting to carry a bucket of hot tar up a ladder. At issue was the ―peculiar risk‖
exception to the general rule of nonliability. The peculiar risk exception allows
lawsuits against those who hire contractors, if the work is ―likely to create . . . a
peculiar risk of physical harm to others unless special precautions are taken . . . .‖
(Rest.2d Torts, § 416.) In this context, the phrase ―peculiar risk‖ is used to mean a
risk that is particular to the situation, not a risk that is odd or weird. (Privette, at
p. 695.) The peculiar risk doctrine ensured that ―a landowner who chose to
undertake inherently dangerous activity on his land [c]ould not escape liability for
injuries to others simply by hiring an independent contractor . . . .‖ (Id. at p. 694.)
The rule ―fairly allocated [the risk of injury] to the person for whose benefit the
job was undertaken,‖ thereby promoting workplace safety and ensuring
compensation for ―innocent third parties‖ injured by such work. (Ibid.)
At first, the peculiar risk doctrine permitted only lawsuits by injured
neighbors or innocent bystanders, not lawsuits by injured employees of the
independent contractor hired to do the work. Eventually, however, this court
expanded the doctrine to include the latter type of suits. (See Woolen v. Aerojet
General Corp. (1962) 57 Cal.2d 407, 410–411 (Woolen); Van Arsdale v. Hollinger
(1968) 68 Cal.2d 245, 255 (Van Arsdale).)
In Privette, supra, 5 Cal.4th 689, we changed course and overruled Woolen,
supra, 57 Cal.2d 407, and its progeny. (Privette, supra, at p. 702, fn. 4.) We noted
that work-related injuries are compensable under our state‘s Workers‘
Compensation Act (§ 3200 et seq.). (Privette, supra, at pp. 696–698.) Moreover,
that act affords ― ‗the exclusive remedy . . . for injury or death of an employee‘ ‖
8

against an employer who obtains workers‘ compensation insurance coverage. (Id.
at p. 697.) In light of that limitation on the independent contractor‘s liability to its
injured employee, Privette concluded that it would be unfair to permit the injured
employee to obtain full tort damages from the hirer of the independent contractor.
That was especially so because (1) the hirer likely paid indirectly for the workers‘
compensation insurance as a component of the contract price (id. at pp. 698–699),
(2) the hirer has no right to reimbursement from the contractor even if the latter
was primarily at fault (id. at p. 701, citing § 3864), and (3) those workers who
happen to work for an independent contractor should not enjoy a tort damages
windfall that is unavailable to other workers (Privette, supra, at pp. 699–700). We
further noted that workers‘ compensation serves the same policies as the peculiar
risk doctrine: It ensures the availability of compensation to injured employees,
spreads the risk created by a contractor‘s work to those who benefit from the
work, and encourages workplace safety. (Id. at p. 701.)
We next discussed the peculiar risk doctrine in Toland v. Sunland Housing
Group, Inc. (1998) 18 Cal.4th 253 (Toland), in which we considered whether our
holding in Privette, supra, 5 Cal.4th 689, applied when the hirer of the
independent contractor failed to specify as part of the contract that the contractor
should take special precautions to avert the peculiar risk. We noted that the hirer
―has no obligation to specify the precautions an independent hired contractor
should take for the safety of the contractor’s employees‖ and ―[a]bsent an
obligation, there can be no liability in tort.‖ (Toland, supra, at p. 267, original
italics.) We also said that subjecting those who hire contractors to peculiar risk
liability in such circumstances would negate their ―right to delegate to independent
contractors the responsibility of ensuring the safety of their own workers.‖ (Id. at
p. 269.) Thus, in Toland, we recognized the principle of delegation of duty as a
rationale for our decision.
9

In 2002, we further refined those principles in Hooker, supra, 27 Cal.4th
198, holding that an independent contractor‘s employee can sometimes recover in
tort from the contractor‘s hirer if the hirer retained control of the contracted work
and ― ‗fail[ed] to exercise his control with reasonable care . . . .‘ ‖ (Id. at p. 206,
quoting Rest.2d Torts, § 414.) We noted that our holding in Privette, supra,
5 Cal.4th 689, was based on the principle that the hirer of an independent
contractor generally has ― ‗ ― ‗no right of control as to the mode of doing the work
contracted for . . . .‘ ‖ ‘ ‖ (Hooker, supra, at p. 213, italics omitted.) We held in
Hooker that the hirer cannot be liable ―merely because [it] retained the ability to
exercise control over safety at the worksite,‖ but that it is fair to make the hirer
liable if it ―exercised the control that was retained in a manner that affirmatively
contributed to the injury of the contractor‘s employee.‖ (Id. at p. 210.)
Thereafter, our 2005 decision in Kinsman, supra, 37 Cal.4th 659, stressed the
―framework of delegation‖ (id. at p. 671) to explain our holdings in Privette, supra,
5 Cal.4th 689, Toland, supra, 18 Cal.4th 253, and Hooker, supra, 27 Cal.4th 198.
Those decisions, we observed, were grounded on a common law principle ―that
when a hirer delegated a task to an independent contractor, it in effect delegated
responsibility for performing that task safely, and assignment of liability to the
contractor followed that delegation.‖ (Kinsman, supra, at p. 671.) For ―policy
reasons,‖ Kinsman noted, ―courts have severely limited the hirer‘s ability to
delegate responsibility [to a contractor] and escape liability‖ to a bystander who is
injured by the contractor‘s negligence. (Ibid.) But, Kinsman pointed out, if the
injured party is the contractor‘s employee, and therefore entitled to workers‘
compensation benefits, those policy concerns do not apply. Hence, Kinsman said, a
hirer is presumed ―to delegate to an independent contractor the duty to provide the
contractor‘s employees with a safe working environment.‖ (Ibid.)
10

Most recently, in Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th
518, we again focused on delegation of duty as an important principle underlying
Privette, supra, 5 Cal.4th 689, and its progeny. Tverberg held that an independent
contractor‘s hirer is not liable in tort even if the contractor himself, rather than the
contractor‘s employee, is the one that is injured in the workplace. (Tverberg, supra,
at pp. 528–529.) Although the contractor in Tverberg was not entitled to workers‘
compensation benefits, his claim against the hirer nevertheless failed because of the
hirer‘s presumed delegation to the contractor of responsibility for workplace safety.
(Id. at pp. 527–528.) The independent contractor, Tverberg said, ―has authority to
determine the manner in which inherently dangerous . . . work is to be performed,
and thus assumes legal responsibility for carrying out the contracted work, including
the taking of workplace safety precautions.‖ (Id. at p. 522.)
The Privette line of decisions discussed above establishes that an
independent contractor‘s hirer presumptively delegates to that contractor its tort
law duty to provide a safe workplace for the contractor‘s employees. At issue here
is whether the hirer can be liable to the contractor‘s employees for workplace
injuries allegedly resulting from the hirer‘s failure to comply with safety
requirements of Cal-OSHA and its regulations. That raises the question whether
the tort law duty, if any, to comply with Cal-OSHA and its regulations for the
benefit of an independent contractor‘s employees is nondelegable, an issue we
discuss below.
B.
The nondelegable duties doctrine prevents a party that owes a duty to others
from evading responsibility by claiming to have delegated that duty to an
independent contractor hired to do the necessary work. The doctrine applies when
the duty preexists and does not arise from the contract with the independent
contractor. (See Eli v. Murphy (1952) 39 Cal.2d 598, 600; Knell v. Morris (1952)
11

39 Cal.2d 450, 456.) In Maloney v. Rath (1968) 69 Cal.2d 442 (Maloney), for
example, this court held that car owners cannot delegate their duty to ensure that
their cars have working brakes. Hence, an owner cannot avoid liability for an
accident by arguing that the mechanic hired to inspect the brakes failed to discover
the brake problem. (Id. at pp. 446–447.)
After our 2002 decision in Hooker, supra, 27 Cal.4th 198 (in which we
allowed actions in tort against an independent contractor‘s hirer if the hirer retained
control over the work and exercised that control negligently, thereby affirmatively
contributing to the worker‘s injury), several Courts of Appeal have concluded that
the hirer‘s statutory or regulatory duties constitute retained control if those duties
are nondelegable. The courts disagree, however, about the effect of a breach.
Some courts — including the Court of Appeal here — have held that the breach of a
nondelegable statutory or regulatory duty can, by itself, create a triable issue as to
whether the hirer ―affirmatively contributed‖ (Hooker, at p. 210) to the injury of the
independent contractor‘s employee. (Padilla v. Pomona College (2008) 166
Cal.App.4th 661, 672; Evard v. Southern California Edison (2007) 153 Cal.App.4th
137, 147; Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281,
295, 301.) Other courts have held that if the breach is merely an omission, that
breach alone cannot qualify as the ―affirmative[] contribut[ion]‖ required for
liability under Hooker, supra, 27 Cal.4th at page 210. (Madden v. Summit View,
Inc., supra, 165 Cal.App.4th at pp. 1279–1280; Millard v. Biosources, Inc. (2007)
156 Cal.App.4th 1338, 1344, 1348.)
These cases are inapposite here because we reject the premise that the tort
law duty, if any, that a hirer owes under Cal-OSHA and its regulations to the
employees of an independent contractor is nondelegable. When in this case
defendant US Airways hired independent contractor Aubry to maintain and repair
the conveyor, US Airways presumptively delegated to Aubry any tort law duty of
12

care the airline had under Cal-OSHA and its regulations to ensure workplace
safety for the benefit of Aubry‘s employees. The delegation — which, as noted on
page 11, ante, is implied as an incident of an independent contractor‘s hiring —
included a duty to identify the absence of the safety guards required by Cal-
OSHA regulations and to take reasonable steps to address that hazard.
As discussed earlier (pt. II.A., ante), Privette, supra, 5 Cal.4th 689, and its
progeny recognize a presumption that an independent contractor‘s hirer delegates
to that contractor the responsibility to perform the specified work safely. The
policy favoring ―delegation of responsibility and assignment of liability‖ is very
―strong in this context‖ (Kinsman, supra, 37 Cal.4th at p. 671), and a hirer
generally ―has no duty to act to protect the [contractor‘s] employee when the
contractor fails in that task . . .‖ (id. at p. 674).
Nevertheless, the Court of Appeal here held that defendant US Airways
could not delegate to independent contractor Aubry the tort law duty, if any, the
airline owed to Aubry‘s employees to ensure that the conveyor met Cal-OSHA
safety standards. The Court of Appeal quoted our comment — made in a decision
some 25 years before Privette, supra, 5 Cal.4th 689 — that the category of
nondelegable duties includes ―the duty of employers and suppliers to comply with
the safety provisions of the Labor Code.‖ (Maloney, supra, 69 Cal.2d at p. 447.)
Maloney, which did not involve workplace safety, based its nondelegable duty
analysis on our then recent decision in Van Arsdale, supra, 68 Cal.2d 245, which
did involve workplace safety.
In Van Arsdale, supra, 68 Cal.2d 245, a city hired an independent contractor
and expressly delegated to the contractor the responsibility for the safety of the
contractor‘s workers. This court held that the city ―had a nondelegable duty to
exercise due care,‖ and it ―could not avoid [this] duty by hiring an independent
13

contractor.‖ (Id. at p. 255.) Therefore, Van Arsdale concluded, an injured
employee of the contractor could sue the city.
In holding the city‘s tort law duty to be nondelegable, Van Arsdale relied
on the peculiar risk doctrine. (Van Arsdale, supra, 68 Cal.2d at pp. 253–254.) But
as already discussed (see pp. 7–9, ante), our 1993 decision in Privette, supra,
5 Cal.4th 689, rejected application of the peculiar risk doctrine in the context of
tort actions by employees of independent contractors, and it overruled
Van Arsdale. (Privette, at pp. 696, 702, fn. 4.) Therefore, Van Arsdale is no help to
plaintiffs here, and neither is our statement in Maloney, supra, 69 Cal.2d at page
447, which was based on Van Arsdale.
In trying to fit this case within the nondelegable duties doctrine, the Court of
Appeal here distinguished between those Cal-OSHA requirements that arise from
the work performed by the independent contractor and those that predate the
contractor‘s hiring and apply to the hirer ―by virtue of [its] role as property owner.‖
In the view of the Court of Appeal, the latter requirements are nondelegable.
Conversely, tort law duties that ―only exist because construction or other work is
being performed‖ can be delegated to the contractor hired to do the work. We
acknowledge the distinction, but for the reasons given below, we conclude that the
Court of Appeal did not apply the distinction correctly.
Before hiring independent contractor Aubry, defendant US Airways owed
its own employees a duty to provide a safe workplace. We do not suggest that
defendant could delegate that preexisting duty to Aubry (such that defendant could
avoid liability if the conveyor had injured defendant’s own employee). But under
the definition of ―employer‖ that applies to California‘s workplace safety laws
(see § 6304), the employees of an independent contractor like Aubry are not
considered to be the hirer‘s own employees, and the issue here is whether
defendant US Airways implicitly delegated to contractor Aubry the tort law duty, if
14

any, that it had to ensure workplace safety for Aubry’s employees. The latter duty
did not predate defendant‘s contract with Aubry; rather, it arose out of the contract.
Any tort law duty US Airways owed to Aubry‘s employees only existed because of
the work (maintenance and repair of the conveyor) that Aubry was performing for
the airline, and therefore it did not fall within the nondelegable duties doctrine.
The policy favoring delegation in this case is bolstered by the same factors
we considered persuasive in Privette, supra, 5 Cal.4th 689. (See pp. 8–9, ante.)
Privette noted that the cost of workers‘ compensation insurance for an independent
contractor‘s employees is presumably included in the contract price the hirer pays
to the contractor, and therefore the hirer indirectly pays for that insurance. (Privette,
at p. 699.) Privette further noted that workers‘ compensation guarantees
compensation for injured workers, ―spreads the risk created by the performance of
dangerous work to those who . . . benefit from such work,‖ and ―encourages
industrial safety.‖ (Id. at p. 701.) Also, in light of the limitation that the workers‘
compensation law places on the independent contractor‘s liability (shielding the
latter from tort liability), it would be unfair to permit the injured employee to
obtain full tort damages from the hirer of the independent contractor — damages
that would be unavailable to employees who did not happen to work for a hired
contractor. This inequity would be even greater when, as is true here, the
independent contractor had sole control over the means of performing the work.
(See id. at pp. 698–700.) In sum, we see no reason to limit our holding in Privette
simply because the tort law duty, if any, that the hirer owes happens to be one
based on a statute or regulation.
Accordingly, plaintiffs here cannot recover in tort from defendant US
Airways on a theory that employee Verdon‘s workplace injury resulted from
defendant‘s breach of what plaintiffs describe as a nondelegable duty under Cal-
15

OSHA regulations to provide safety guards on the conveyor. Hence, the Court of
Appeal erred in reversing the trial court‘s grant of summary judgment for defendant.
DISPOSITION
The judgment of the Court of Appeal is reversed.

KENNARD, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
JOHNSON, J.*

*
Associate Justice of the Court of Appeal, Second Appellate District,
Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
16


CONCURRING OPINION BY WERDEGAR, J.
I agree with the majority that defendant US Airways, Inc., is entitled to
summary judgment. I do not agree with the majority‘s reasoning.
I
We originally granted review to resolve a conflict between various
divisions of the Court of Appeal concerning nondelegable duties. Decisions of
this court beginning with Privette v. Superior Court (1993) 5 Cal.4th 689
(Privette) generally prevent employees who are injured at work from suing the
person who hired their employer,1 subject to certain exceptions.2 Under one of
those exceptions, liability can still exist when the injury was caused by the hirer‘s
breach of a nondelegable duty articulated in a safety statute or regulation.3 Courts

1
E.g., Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1238; and Toland
v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 267.
2
E.g., Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 674-675 (hirer fails
to warn of latent or concealed hazardous condition); McKown v. Wal-Mart Stores,
Inc.
(2002) 27 Cal.4th 219, 225 (hirer furnishes unsafe equipment); and Hooker v.
Department of Transportation
(2002) 27 Cal.4th 198, 210-212 (hirer retains
control and affirmatively contributes to injury).
3
E.g., Evard v. Southern California Edison (2007) 153 Cal.App.4th 137,
147-149 (industry safety order for elevated billboards); and Barclay v. Jesse M.
Lange Distributor, Inc.
(2005) 129 Cal.App.4th 281, 296-298 (fire code provision
concerning fire extinguishers).
1



have differed, however, on the question whether liability can be predicated simply
on the hirer‘s passive omission to comply with a such a duty, or whether liability
also requires a showing that the hirer made some additional, affirmative
contribution to the injury.4 The former view is somewhat closer to strict liability,
the latter less so. It was to resolve this conflict that we granted review.
The Court of Appeal, ostensibly taking the former view but arguably
moving further in the direction of strict liability, concluded defendant‘s failure to
comply with regulations requiring safety guards on conveyor belts (Cal. Code
Regs., tit. 8, §§ 3999, 4002) created a potential for liability justifying the case‘s
submission to a jury, even though no admissible evidence showed how the
accident had occurred. Anthony Verdon, the injured employee, claimed not to
know how his arm had become caught in the machine. Immediately after the
accident, Verdon‘s supervisor and coworker filed incident reports asserting that
Verdon had violated safety rules by inserting his hand into the machinery to
remove debris without first turning it off. Later, however, the same employees
signed declarations repudiating their reports, stating they had not witnessed the
accident or discussed it with Verdon and had instead based their reports on ―a
guess as to what may have caused the accident.‖ The superior court excluded for

4
Compare Evard v. Southern California Edison, supra, 153 Cal.App.4th
137, 147 (passive omission suffices); and Barclay v. Jesse M. Lange Distributor,
Inc.
, supra, 129 Cal.App.4th 281, 298 (same); with Madden v. Summit View, Inc.
(2008) 165 Cal.App.4th 1267, 1280 (other affirmative contribution required);
Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1352 (same); and Park v.
Burlington Northern Santa Fe Railway Co.
, supra, 108 Cal.App.4th 595, 610
(same).
2



lack of foundation the only other evidence concerning causation — an accident
reconstruction expert‘s opinion that safety guards would have prevented the
accident, based on supposed deposition testimony that turned out not to exist. On
this record, the superior court properly held that no evidence raised a triable issue
of fact as to causation and thus granted summary judgment for defendant. This
ruling was correct no matter which of the competing rules one favors, because the
hirer‘s failure to comply with a nondelegable duty, in order to create liability, must
still be a proximate cause of the injury. (E.g., Madden v. Summit View, Inc.,
supra, 165 Cal.App.4th 1267, 1280-1281.) This essential principle of tort law
disposes of the case before us.
II
In concluding summary judgment for defendant was proper, the majority
does not answer the specific question about nondelegable duties that prompted us
to grant review. Instead, addressing a different question and adopting a rule
broader than any party has proposed, the majority holds that an employer‘s duties
under the California Occupational Safety and Health Act of 1973 (Cal-OSHA)
(Lab. Code, § 6300 et seq.)5 and the regulations issued under its authority are
delegable and, moreover, are presumptively delegated to independent contractors.
In so holding, the majority treats Cal-OSHA statutes and regulations differently,
and less deferentially, than other laws imposing safety obligations on actors
subject to governmental oversight — a category of laws that has long been
considered to impose nondelegable duties for purposes of tort law. (See generally
5
All further citations to statutes are to the Labor Code, except as noted.
3

Maloney v. Rath (1968) 69 Cal.2d 442, 446-448.) Given the factual record and the
manner in which this case has been presented, I question whether it offers an
appropriate occasion for such a holding. Moreover, the holding may well be
wrong for reasons the majority does not consider.
Whether a person upon whom the Legislature has imposed the duty to
maintain a safe workplace (§ 6400, subd. (a)) may delegate that duty ought to be at
least partly a function of legislative intent. Implicitly recognizing this, the
majority attempts to claim for its holding — if not legislative authority — at least
legislative neutrality. ―Not present here,‖ the majority writes, ―is a situation in
which the relevant statutes or regulations indicate an intent to limit the application
of Privette, supra, 5 Cal.4th 689, or preclude delegation of the tort law duty, if
any, that the hirer owes to the contractor‘s employees.‖ (Maj. opn., ante, at p. 2,
fn. 1.)
To the contrary, nondelegability is the clear, unavoidable import of section
6400, subdivision (b), which confirms that Cal-OSHA authorizes the DOSH to
issue citations to employers at multiemployer worksites when an employee has
been exposed to a hazard ―in violation of any requirement enforceable by the
[DOSH],‖ ―regardless of whether their own employees were exposed to the
hazard.‖ The list of employers who may be cited for hazards endangering the
employees of other employers includes, among others, ―[t]he employer who
actually created the hazard‖ (id., subd. (b)(2)) and ―[t]he employer who was
responsible, by contract or through actual practice, for safety and health conditions
on the worksite, which is the employer who had the authority for ensuring that the
hazardous condition is corrected‖ (id., subd. (b)(3)). While the most common
multiemployer worksite is perhaps the construction site, the statute expressly
covers ―both construction and nonconstruction‖ worksites. (Id., subd. (b).) That
4

the employer‘s duties under these circumstances extend to the employees of other
employers is necessarily implicit in the statute, as no citation can logically issue
unless a duty has been breached. A contrary interpretation would defeat the
statute‘s purpose.
The statutory language addressing multiemployer worksites (§ 6400, subd.
(b)) is part of the statute that articulates the fundamental duty of employers to
provide a safe workplace (id., subd. (a)) and thus speaks at the same high level of
authority. The 1999 act that added this language to the Labor Code (Stats. 1999,
ch. 615, § 4, pp. 4338-4339) also added the language already mentioned
(§ 6304.5) making clear that Cal-OSHA statutes and regulations are admissible to
prove negligence in tort actions (Stats. 1999, ch. 615, § 2, p. 4337) and deleted
language that previously had barred the use of Cal-OSHA statutes and regulations
in tort actions ―except as between an employee and his own employer‖ (former
§ 6304.5, as added by Stats. 1971, ch. 1751, § 3, p. 3780, italics added; see Elsner
v. Uveges (2004) 34 Cal.4th 915, 930-931 (Elsner)). Considered together, the
1999 amendments leave no doubt that the Legislature understood and intended
that the employer‘s Cal-OSHA duties at multiemployer worksites would extend
not just to the employer‘s own employees, but also to those of other employers.
Based on the 1999 amendments, we unanimously concluded in Elsner that
―plaintiffs may use Cal-OSHA provisions to show a duty or standard of care to the
same extent as any other regulation or statute, whether the defendant is their
employer or a third party.‖ (Elsner, at pp. 935-936, italics added.)
Ignoring the 1999 multiemployer worksite statute (§ 6400, subd. (b)), the
majority suggests the Legislature‘s intent to permit delegation of Cal-OSHA
responsibilities can be inferred from an earlier statute defining an employer as
―[e]very person . . . which has any natural person in service.‖ (§ 3300, subd. (c);
5

see § 6304 [referring to § 3300], as amended by Stats. 1971, ch. 1751, § 2,
p. 3780.) The definition will not bear the weight the majority would place upon it.
The more recent enactment concerning multiemployer worksites operates not
through the legal fiction that an employer employs a third party‘s employees (cf.
maj. opn., at p. 2), but instead by expressly recognizing that employers in shared
worksites owe duties to the employees of other employers. For the same reason, it
is of no consequence that judicial decisions relying on a former definition of
employer to reach a similar conclusion (e.g., De Cruz v. Reid (1968) 69 Cal.2d
217, 228-229; see maj. opn., ante, at p. 5) may have prompted the Legislature to
adopt the present definition (§§ 3300, 6304). The duties recognized in the
multiemployer worksite statute (§ 6400, subd. (b)) do not in any way depend on
the definition of employer.
To observe that an employer subject to Cal-OSHA has violated a statutory
or regulatory duty to an independent contractor‘s employee certainly does not
suffice, without further analysis, to establish liability in tort for any injuries the
employee may have suffered as a result. But the duty’s existence is the essential
starting point of the analysis. As explained, Cal-OSHA duties play a role in
negligence cases because of section 6304.5, which provides that ―[s]ections 452
and 669 of the Evidence Code shall apply to this division and to occupational
safety and health standards adopted under this division in the same manner as any
other statute, ordinance, or regulation.‖ In other words, Cal-OSHA statutes and
regulations are admissible to show negligence per se in tort actions (see Evid.
Code, § 669; Elsner, supra, 34 Cal.4th 915, at pp. 927-928, 935-936) and are
subject for this purpose to judicial notice (see Evid. Code, § 452; Elsner, at
p. 927). Evidence Code section 669, which codifies the common law doctrine of
negligence per se (Elsner, at p. 927), does not negate or repeal the doctrine of
6

nondelegable duties (California Assn. of Health Facilities v. Department of Health
Services (1997) 16 Cal.4th 284, 298).
The plain language of Evidence Code section 669 applies without any
difficulty when an employer‘s violation of a Cal-OSHA provision at a
multiemployer worksite causes injury to another employer‘s employee. More
specifically, the employer violating the regulation has ―violated a statute . . . or
regulation of a public entity,‖ the violation has ―proximately caused . . . injury to a
person,‖ the injury has ―resulted from an occurrence of the nature which the
statute . . . or regulation was designed to prevent,‖ and ―[t]he person suffering . . .
the injury . . . was one of the class of persons for whose protection the statute . . .
or regulation was adopted.‖ (Evid. Code, § 669, subd. (a)(1)-(4)). Finally, at a
multiemployer worksite, section 6400, subdivision (b), establishes that the injured
employee ―was one of the class of persons for whose protection the . . . regulation
was adopted‖ (Evid. Code, § 669, subd. (a)(4)).
As the majority correctly observes (ante, at p. 2, fn. 1), the Legislature has
not expressly addressed the interaction between Cal-OSHA and the rule of
Privette, supra, 5 Cal.4th 689. But the Legislature has had no reason to do so
because, until today, this court‘s decisions applying and extending that rule have
concerned duties arising under the common law and not under Cal-OSHA. What
matters for present purposes is that the Legislature has determined that the Cal-
OSHA duties of employers at multiemployer worksites extend to the employees of
other employers. (§ 6400, subd. (b).) I recognize that the Legislature‘s decision to
place Cal-OSHA provisions on an equal footing with other statutes and regulations
in the context of tort law (§ 6304.5) permits courts, at least in theory, to guide the
use of such provisions in civil actions by applying applicable common law
doctrines, insofar as those doctrines are consistent with the Legislature‘s intent in
7

creating the relevant duty. In contrast, to apply a common law doctrine like
Privette in tort actions to selectively negate one aspect of an employer‘s Cal-
OSHA duty (i.e., the employer‘s duty to other employers‘ employees), while
enforcing other aspects of that duty (i.e., the employer‘s duty to its own
employees; see maj. opn., ante, at p. 14), is plainly inconsistent with legislative
intent.
In summary, to the extent delegability is a function of legislative intent, the
majority does not convince me the Legislature intended to treat duties created by
Cal-OSHA statutes and rules, unlike other regulatory safety duties, as delegable
and presumptively delegated whenever the person upon whom the Legislature has
imposed such a duty hires an independent contractor. A rule that threatens an
erosive effect on workplace safety deserves a more solid grounding in legislative
intent than a statutory definition of employer (§§ 3300, 6304; see maj. opn., ante,
at pp. 2, 5) that, as explained, is not the provision in which the Legislature has
addressed the scope of employers‘ duties in multiemployer worksites (see § 6400,
subd. (b)). I thus do not join in the majority‘s analysis.
WERDEGAR, J.
8

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Seabright Insurance Company v. U.S. Airways, Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 183 Cal.App.4th 219
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S182508
Date Filed: August 22, 2011
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: Peter J. Busch

__________________________________________________________________________________

Counsel:

England Ponticello & St. Clair, Barry W. Ponticello, Renee C. St. Claire and Nadine D. Y. Adrian for
Plaintiff and Appellant.

The Arns Law Firm, Robert S. Arns, Jonathan E. Davis and Steven R. Weinmann for Consumer Attorneys
of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Hodson & Mullin, Samuel C. Mullin; O‘Mara & Padilla and Michael D. Padilla for Intervener and
Appellant.

Dimalanta Clark, Lee W. Clark, Lisa A. Lenoci; Kenney & Markowitz, Stephan E. Kyle, Kymberly E.
Speer and Elizabeth D. Rhodes for Defendant and Respondent.

Archer Norris, Gary Watt; and Nick Cammarota for The California Building Industry Association as
Amicus Curiae on behalf of Defendant and Respondent.

Horvitz & Levy, David M. Axelrod and Stephen E. Norris for Fillner Construction, Inc., as Amicus Curiae
on behalf of Defendant and Respondent.

Murphy, Pearson, Bradley & Feeney and William A. Munoz for Air Transport Association of America,
Inc., as Amicus Curiae on behalf of Defendant and Respondent.




Counsel who argued in Supreme Court (not intended for publication with opinion):

Barry W. Ponticello
England Ponticello & St. Clair
701 B Street, Suite 1790
San Diego, CA 92101-8104
(619) 255-6450

Michael D. Padilla
O‘Mara & Padilla
12770 High Bluff Drive, Suite 200
San Diego, CA 92130
(858) 481-5454

Kymberly E. Speer
Kenney & Markowitz
255 California Street, Suite 1300
San Francisco, CA 94111
(415) 397-3100

Gary A. Watt
Archer Norris
2033 North Main Street, Suite 800
Walnut Creek, CA 94596-3759
(925) 930-6600


Petition for review after the Court of Appeal reversed the judgment in a civil action. This case includes the following issue: In hiring an independent contractor, does the hirer implicitly delegate to the contractor any tort law duty it owes to the independent contractor’s employees under California Occupation Safety and Health Act (Cal-OSHA) and its regulations?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 08/22/201152 Cal. 4th 590, 258 P.3d 737, 129 Cal. Rptr. 3d 601S182508Review - Civil Appealsubmitted/opinion due

LEWIS v. PEPPER CONSTRUCTION COMPANY PACIFIC (S181596)
TVERBERG v. FILLNER CONSTRUCTION (S192804)


Parties
1Seabright Insurance Company (Plaintiff and Appellant)
Represented by Barry W. Ponticello
England Ponticello & St. Clair
701 "B" Street, Suite 1790
San Diego, CA

2Seabright Insurance Company (Plaintiff and Appellant)
Represented by Nadine Dominique Adrian
England Ponticello & St. Clair
701 "B" Street, Suite 1790
San Diego, CA

3U.S. Airways, Inc. (Defendant and Respondent)
Represented by Kymberly E. Speer
Kenney & Markowitz, LLP
255 California Street, Suite 1300
San Francisco, CA

4U.S. Airways, Inc. (Defendant and Respondent)
Represented by Elizabeth Dunn Rhodes
Kenney & Markowitz, LLP
255 California Street Suite 1300
San Francisco, CA

5City & County of San Francisco (Defendant and Respondent)
6San Francisco International Airport (Defendant and Respondent)
7Lujan, Anthony Verdon (Intervener and Appellant)
Represented by Michael Dario Padilla
O'Mara & Padilla
12770 High Bluff Drive, Suite 200
San Diego, CA

8Lujan, Anthony Verdon (Intervener and Appellant)
Represented by Samuel Cloyd Mullin
Hodson & Mullin
601 Buck Avenue
Vacaville, CA

9Air Transport Association of America, Inc. (Amicus curiae)
Represented by William Angelo Munoz
Murphy Pearson Bradley & Feeney
1375 Exposition Boulevard, Suite 250
Sacramento, CA

10California Building Industry Association (Amicus curiae)
Represented by Gary A. Watt
Archer Norris
2033 N. Main Street, Suite 800
Walnut Creek, CA

11Consumer Attorneys of California (Amicus curiae)
Represented by Robert Arns
Arns Law Firm
515 Folsom Street, 3rd Floor
San Francisco, CA

12Consumer Attorneys of California (Amicus curiae)
Represented by Steven Richard Weinmann
Arns Law Firm
515 Folsom Street, 3rd Floor
San Francisco, CA

13Fillner Construction, INc. (Amicus curiae)
Represented by Stephen E. Norris
Horvitz & Levy, LLP
15760 Ventura Boulevard, 18th Floor
Encino, CA


Opinion Authors
OpinionJustice Joyce L. Kennard
ConcurJustice Kathryn M. Werdegar

Dockets
May 7 2010Petition for review filed
Defendant and Respondent: U.S. Airways, Inc.Attorney: Kymberly E. Speer  
May 7 2010Record requested
  via email
May 11 2010Received Court of Appeal record
  file jacket/briefs/accordian file
May 26 2010Answer to petition for review filed
Plaintiff and Appellant: Seabright Insurance CompanyAttorney: Nadine Dominique Adrian  
May 28 2010Request for extension of time filed
  Respondent - U.S. Airways, Inc. requesting four day extension until June 9, 2010 to file reply to answer to petition for review. by Kimberly Speer, counsel
Jun 4 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply to answer to petition for review is hereby extended to and including June 8, 2010.
Jun 8 2010Reply to answer to petition filed
Defendant and Respondent: U.S. Airways, Inc.Attorney: Kymberly E. Speer  
Jun 9 2010Petition for review granted
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jun 22 2010Request for extension of time filed
  Respondent requesting 35 day extension until August 13, 2010 to file opening brief on the merits. by Elizabeth D. Rhodes, counsel
Jun 23 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 13, 2010.
Jun 28 2010Certification of interested entities or persons filed
  Anthony Lujan, intervener and appellant by Michael Dario Padilla, counsel
Jun 28 2010Certification of interested entities or persons filed
  Seabright Insurance Company, plaintiff and appellant by Nadine Dominique Adrian, counsel
Jul 12 2010Filed:
  notice of disassociation of counsel Lee W. Clark and Lisa A. Lenoci. by Lisa A. Lenoci, counsel
Jul 26 2010Request for extension of time filed
  Respondent - U.S. Airways, Inc. requesting extension until September 15, 2010, to file it's opening brief on the merits. by Kymberly E. Speer, counsel
Aug 2 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 15, 2010.
Sep 15 2010Opening brief on the merits filed
Defendant and Respondent: U.S. Airways, Inc.Attorney: Elizabeth Dunn Rhodes  
Sep 15 2010Request for judicial notice filed (Grant or AA case)
Defendant and Respondent: U.S. Airways, Inc.Attorney: Elizabeth Dunn Rhodes  
Sep 23 2010Certification of interested entities or persons filed
  U.S. Airways, Inc., respondenty by Kimberly Speer, counsel
Oct 13 2010Request for extension of time filed
  appellant - Seabright Insurance Company requesting extension until November 15, 2010 to file joint answer brief on the merits. by Barry W. Ponticello, counsel
Oct 18 2010Extension of time granted
  On application of plaintiff and appellant and good cause appearing, it is ordered that the time to serve and file the joint answer brief on the merits is extended to and including November 15, 2010.
Nov 15 2010Answer brief on the merits filed
Plaintiff and Appellant: Seabright Insurance CompanyAttorney: Barry W. Ponticello Attorney: Nadine Dominique Adrian Intervener and Appellant: Lujan, Anthony VerdonAttorney: Michael Dario Padilla Attorney: Samuel Cloyd Mullin   Appellants' joint answer.
Nov 24 2010Request for extension of time filed
  Respondent - U.S. Airways, Inc. requesting extension until January 10, 2011 to file reply brief on the merits. by Elizabeth Rhodes, counsel
Dec 2 2010Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including January 10, 2011.
Jan 10 2011Reply brief filed (case fully briefed)
Defendant and Respondent: U.S. Airways, Inc.Attorney: Kymberly E. Speer  
Feb 1 2011Request for extension of time to file amicus curiae brief
  Amicus Curiae - Fillner Construction, Inc. requesting extension until March 11, 2011 to file amicus curiae brief. by Stephen Norris, counsel
Feb 4 2011Extension of time granted
  On application of amicus curiae - Fillner Construction, Incorporated and good cause appearing, it is ordered that the time to serve and file the amicus curiae brief is extended to and including February 23, 2011.
Feb 7 2011Request for extension of time to file amicus curiae brief
  Amicus Curiae - Air Transiport Association of America, Inc. requesting extension until February 23, 2011 to file amicus curiae. by William Munoz, counsel
Feb 8 2011Application to file amicus curiae brief filed
  California Building Industry Association. by Gary A. Watt, counsel
Feb 9 2011Application to file amicus curiae brief filed
  Consumer Attorneys of California in support of appellant. by Robert S. Arns, counsel
Feb 10 2011Extension of time granted
  On application of amicus curiae Air Transport Association of America, Inc., and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of respondent is hereby extended to and including February 23, 2011.
Feb 22 2011Permission to file amicus curiae brief granted
  The application of California Building Industry Association for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 30 days of the filing of the brief.
Feb 22 2011Amicus curiae brief filed
Amicus curiae: California Building Industry AssociationAttorney: Gary A. Watt   The California Building Industry Association in support of respondent.
Feb 22 2011Permission to file amicus curiae brief granted
  The application of Consumer Attorneys of California for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 30 days of the filing of the brief.
Feb 22 2011Amicus curiae brief filed
Amicus curiae: Consumer Attorneys of CaliforniaAttorney: Robert Arns   Consumer Attorneys of California in support of appellant.
Feb 23 2011Application to file amicus curiae brief filed
  Air Transport Association of America Inc. in support of respondent. by William A. Munoz
Feb 24 2011Application to file amicus curiae brief filed
  By Fillner Construction, Inc., in support of respondent U.S. Airways. CRC 8.25(b)
Mar 3 2011Permission to file amicus curiae brief granted
  The application of Air Transport Association of America, Inc. for permission to file an amicus curiae brief in support of respondent is hereby granted. An Answer thereto may be served and filed by any party within 30 days of the filing of the brief.
Mar 3 2011Amicus curiae brief filed
Amicus curiae: Air Transport Association of America, Inc.Attorney: William Angelo Munoz  
Mar 3 2011Permission to file amicus curiae brief granted
  The application of Fillner Construction, Inc. for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 30 days of the filing of the brief.
Mar 3 2011Amicus curiae brief filed
Amicus curiae: Fillner Construction, INc.Attorney: Stephen E. Norris  
Mar 18 2011Request for extension of time filed
  respondent requesting extension until April 24, 2011 to file answer to amicus curiae. by Elizabeth Rhodes, counsel
Mar 23 2011Request for extension of time filed
  appellant and intervener and appellant requesting joint extension until May 4, 2011 to file a consolidated answer to the amicus curiae brief. by Barry W. Pinticello,
Mar 28 2011Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer to amicus curiae is extended to and including April 8, 2011.
Apr 6 2011Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file the joint answer to the amicus curiae briefs is extended to and including May 4, 2011.
Apr 8 2011Response to amicus curiae brief filed
Defendant and Respondent: U.S. Airways, Inc.Attorney: Elizabeth Dunn Rhodes  
Apr 19 2011Justice pro tempore assigned
  Hon. Jeffrey W. Johnson Second Appellate District, Division One
May 3 2011Case ordered on calendar
  to be argued Wednesday, May 25, 2011, at 9:00 a.m., in San Francisco
May 3 2011Response to amicus curiae brief filed
Plaintiff and Appellant: Seabright Insurance CompanyAttorney: Barry W. Ponticello Intervener and Appellant: Lujan, Anthony VerdonAttorney: Michael Dario Padilla   Appellants' joint consolidated answer to amicus curiae briefs.
May 13 2011Supplemental brief filed
Defendant and Respondent: U.S. Airways, Inc.Attorney: Kymberly E. Speer  
May 16 2011Filed:
  Letter from Kymberly E. Speer, counsel for respondent U.S. Airways, requesting to share 10 minutes of oral argument time with amicus curiae California Building Industry Association.
May 17 2011Filed:
  Letter from Barry W. Ponitcello, counsel for appellants Seabright Insurance, requesting to equally share oral argument time with intervener appellant Anthony Verdon Lujan.
May 17 2011Filed:
  Follow-up letter from Kymberly E. Speer, counsel for respondent U.S. Airways, indicating that California Building Industry Association's arguments will "concern the rule this court should adopt regarding determing whether regulatory safety regulations are in fact nondelegable in the hirer-liability context, and if they are, application of 'nondelegable duty' principles in light of Kinsman v. unocal Corporation (2005) 37 Cal.4th 659."
May 18 2011Order filed
  The request of respondent to allocate to amicus curiae California Building Industry Association 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
May 18 2011Order filed
  The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to appellant Seabright Insurance 15 minutes and intervener and appellant Lujan 15 minutes of appellants' 30-minute allotted time for oral argument is granted.
May 23 2011Request for judicial notice granted
  The motion for judicial notice brought by defendant U.S. Airways, Inc., and filed in this court on September 15, 2010, is granted as to the submitted portions of the public record regarding the drafting of Section 4002 of Title 8 of the California Code of Regulations (exhibit 3). In all other respects, the motion is denied.
May 25 2011Cause argued and submitted
 
Aug 19 2011Notice of forthcoming opinion posted
  To be filed on Monday, August 22, 2011 at 10 a.m.

Briefs
Sep 15 2010Opening brief on the merits filed
Defendant and Respondent: U.S. Airways, Inc.Attorney: Elizabeth Dunn Rhodes  
Nov 15 2010Answer brief on the merits filed
Plaintiff and Appellant: Seabright Insurance CompanyAttorney: Barry W. Ponticello Attorney: Nadine Dominique Adrian Intervener and Appellant: Lujan, Anthony VerdonAttorney: Michael Dario Padilla Attorney: Samuel Cloyd Mullin  
Jan 10 2011Reply brief filed (case fully briefed)
Defendant and Respondent: U.S. Airways, Inc.Attorney: Kymberly E. Speer  
Feb 22 2011Amicus curiae brief filed
Amicus curiae: California Building Industry AssociationAttorney: Gary A. Watt  
Feb 22 2011Amicus curiae brief filed
Amicus curiae: Consumer Attorneys of CaliforniaAttorney: Robert Arns  
Mar 3 2011Amicus curiae brief filed
Amicus curiae: Air Transport Association of America, Inc.Attorney: William Angelo Munoz  
Mar 3 2011Amicus curiae brief filed
Amicus curiae: Fillner Construction, INc.Attorney: Stephen E. Norris  
May 3 2011Response to amicus curiae brief filed
Plaintiff and Appellant: Seabright Insurance CompanyAttorney: Barry W. Ponticello Intervener and Appellant: Lujan, Anthony VerdonAttorney: Michael Dario Padilla  
Apr 8 2011Response to amicus curiae brief filed
Defendant and Respondent: U.S. Airways, Inc.Attorney: Elizabeth Dunn Rhodes  
Brief Downloads
application/pdf icon
s182508-1-respondent-petition-for-review.pdf (521828 bytes) - Respondent Petition for Review
application/pdf icon
s182508-2-appellants-answer-to-petition-for-review.pdf (133932 bytes) - Appellants Answer to Petition for Review
application/pdf icon
s182508-3-respondent-reply-answer-petition-review.pdf (122615 bytes) - Respondent Reply to Answer to Petition for Review
application/pdf icon
s182508-4-respondent-opening-brief-on-the-merits.pdf (526126 bytes) - Respondent Opening Brief on the Merits
application/pdf icon
s182508-5-respondent-request-for-judicial-notice.pdf (2565518 bytes) - Respondent Request for Judicial Notice
application/pdf icon
s182508-6-appellants-joint-answer-brief-merits.pdf (263568 bytes) - Appellants Joint Answer Brief on the Merits
application/pdf icon
s182508-7-respondent-reply-brief-on-the-merits.pdf (222198 bytes) - Respondent Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jun 6, 2012
Annotated by Hunter Ellis

FACTS:

Defendant US Airways hired independent contractor Lloyd W. Aubry Co. to maintain and repair a conveyor it owned at San Francisco International Airport. The conveyor lacked certain safety guards required under the California Occupational Safety and Health Act (Cal-OSHA) and its regulations. Anthony Verdon Lujan, a mechanic and employee of Aubry, was inspecting the conveyor and his arm got caught in its moving parts.

Plaintiff Seabright Insurance Company, Aubry’s workers’ compensation insurer, paid Verdon benefits based on his injury and then sued defendant US Airways in a subrogation action, claiming the airline caused Verdon’s injury and seeking to recover what it paid in benefits to Verdon. Verdon intervened as a plaintiff in the action, alleging causes of action for negligence and premises liability. Defendant sought summary judgment, arguing that it did not “affirmatively contribute” to employee Verdon’s injury pursuant to the standard enunciated by the Hooker court.

PROCEDURAL HISTORY:

The trial court granted summary judgment for the defendant US Airways, finding no evidence that the airline “affirmatively contributed” to the workplace accident. The California Court of Appeal reversed, holding that under Cal-OSHA, defendant had a nondelegable duty to ensure that the airport conveyer had safety guards, and that the question whether the airline’s failure to perform this duty affirmatively contributed to plaintiff’s injury remained a triable issue of fact, precluding summary judgment. The Supreme Court of California granted the defendants’ petition for review and reversed the judgment of the Court of Appeal.

ISSUE:

In hiring an independent contractor, does the hirer implicitly delegate to the contractor any tort law duty it owes to the independent contractor’s employees under California Occupation Safety and Health Act (Cal-OSHA) and its regulations?

HOLDING:

The Supreme Court of California reversed the judgment of the Court of Appeal, holding that an independent contractor’s hirer implicitly delegates to that contractor its tort law duty, if any, to provide the employees of that contractor a safe workplace pursuant to Cal-OSHA and its regulations.

ANALYSIS:

In arriving at its decision, the Supreme Court of California began by reviewing the recent history of cases addressing the peculiar risk doctrine, which allows a lawsuit against one who hired a contractor if the work was likely to create a peculiar risk of physical harm to others unless special precautions are taken.

The Court first examined Privette v. Superior Court, where the Court had concluded that the peculiar risk doctrine does not include claims by injured employees of an independent contractor against the contractor’s hirer. In that case, the Court had reasoned that it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor because the hirer likely paid indirectly for the workers’ compensation insurance as a component of the contract price.

The Court next discussed the Toland decision, in which the Court had found that a hirer has no obligation to specify the precautions an independent contractor should take for the safety of the contractor’s employees, and absent such an obligation there can be no liability in tort. Moreover, the Court analyzed the 2002 Hooker case, where the Court had further refined the peculiar risk principle, finding that a hirer cannot be liable for the injuries of a contractor’s employees merely because it retained the ability to exercise control over worksite safety. The Hooker court found that it is only fair to make the hirer liable if it exercised its control in a manner that “affirmatively contributed” to the injury of the contractor’s employee.

Justice Kennard concluded that the Privette line of decisions addressing the peculiar risk doctrine established that an independent contractor’s hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor’s employees under Cal-OSHA and its regulations. Further, the Court reasoned that the policies favoring delegation of a hirer’s tort law duty in Privette were persuasive in the Seabright case as well. Most importantly, the cost of worker’s compensation insurance for Aubry’s employees was presumably included in the contract price US Airway’s paid to Aubry for maintaining the airport conveyor. Moreover, the Court aligned the case with Hooker, noting that Aubry had sole control over the maintenance of the conveyor, and the defendant did not “affirmatively contribute” to the employee’s injury. Accordingly, the Court ruled that the plaintiffs could not recover in tort from defendant US Airways, and reversed the judgment of the Court of Appeal.

In her concurring opinion, Justice Werdegar agreed with the majority’s result, but not with its reasoning. Werdegar noted that the statutory language and legislative history associated with Cal-OSHA demonstrated that the Legislature intended to treat such regulatory duties as nondelegable. Despite this legislative intent, however, Werdegar would uphold summary judgment for the defendant based solely on the plaintiffs’ failure to establish causation.

TAGS:

hirer, independent contractor, workplace, Cal-OSHA, nondelegable duties, delegation, delegable, conveyor, airline, workers’ compensation, tort law, affirmatively contribute, subrogation action, peculiar risk doctrine

RELATED CASES/STATUTES:

Privette v. Superior Court, 5 Cal.4th 689 (1993)
http://scholar.google.com/scholar_case?case=14363312914258699165

Toland v. Sunland Housing Group, Inc., 18 Cal.4th 253 (1998)
http://scholar.google.com/scholar_case?case=2778636034731508117

Hooker v. Department of Transportation, 27 Cal.4th 198 (2002)
http://scholar.google.com/scholar_case?case=1592809882086817254

Kinsman v. Unocal Corporation, 37 Cal.4th 659 (2005)
http://scholar.google.com/scholar_case?case=12652020326383758229

California Occupational Safety and Health Act of 1973 (CAL. LAB. CODE § 6300 et seq.)
http://codes.lp.findlaw.com/cacode/LAB/1/d5/1/1/s6300