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Written By: David A. Frenznick and Samson R. Elsbernd
Wilke, Fleury, Hoffelt, Gould & Birney, LLP
Sacramento, California

A California appellate court recently decided that a hirer or employer may be liable for the injuries suffered by his or her independent contractor's employees. The court held that the employer's liability is triggered by the employer breaching a non-delegable duty imposed by statute or regulation that affirmatively contributes to the employee's injury.

In Seabright Insurance Company v. Lujan (2010) 183 Cal. App. 4th 219 (review granted by the California Supreme Court, June 9, 2010), an airline hired an independent contractor to provide preventative maintenance and repair services to its conveyor system. The conveyor system delivered bags to and from airplanes. The airline was dependent upon its independent contractor, Aubry, for the maintenance and upkeep of the conveyor system. Aubry sent one of its employees to perform the upkeep services and the employee was injured when his arm was caught in a moving conveyor belt.

Court Finds Airline Potentially Liable

The court concluded that the airline was potentially liable even though Aubry's injured employee received his training, including safety training, from Aubry—not the airline. None of the airline's employees were even working with Aubry's employee, nor were they present at the time of the injury. However, the court found the airline potentially liable because it breached an affirmative statutory duty to install protective guarding on the conveyor belt and this breach potentially contributed to the employee's injury.

In most cases, an employer who hires an independent contractor is not liable to third parties who are injured by the contractor's negligence unless the work was inherently dangerous. Furthermore, the exception for inherently dangerous or peculiarly dangerous work had been held not to apply to a contractor's employees who are injured on the job. Courts generally find that public policy favors not holding the employer vicariously liable for employees who are his contractor's responsibility.

The California Supreme Court has ruled, however, that an employer could be liable for retaining control in a manner that affirmatively contributes to the employee's injury. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 200–201.) It gave, as an example, an employer who agrees to implement a safety measure, but fails to implement it and that omission causes injury.

Safety Ordinances May Create Non-Delegable Duties

The Seabright court applied the California Supreme Court's example to impose liability upon an employer who had not promised to implement safety measures, but simply failed to implement legally required safety measures. The court concluded that safety ordinances may create non-delegable duties that make an employer liable for the injuries of his contractors' employees. At the same time, the court cautioned that a mere breach of a safety ordinance will not automatically create liability in the employer. Liability depends upon the text of the regulation itself. Some regulations impose temporary compliance requirements, regulations concerning preparation of a work-site, for example, or concern work that would naturally be done by contractors at a construction site that may be delegated to the employer's contractors. Other regulations impose ongoing obligations that the employer cannot delegate to his contractors.

Affirmative Acts or Failures to Act May Impose Liability

If the regulation or law imposes an ongoing obligation, then the employer's breach of that regulation or law may be deemed to have affirmatively contributed to the injuries suffered by his contractors' employees and could potentially subject the employer to liability. Essentially, the employer's affirmative act or failure to act, makes the employer directly liable for the injury of his contractor's employee.

Regardless of the California Supreme Court’s treatment of Seabright, employers should consider this trend and make themselves keenly aware of regulatory duties, particularly job-site safety responsibilities under federal, state and administrative law. Obligations under these laws may create non-delegable duties for which employers and prime contractors will remain liable even if the work is delegated to an independent subcontractor to perform.

David A. Frenznick is a partner of Wilke, Fleury, Hoffelt, Gould & Birney, LLP and head of the firm’s construction law group. Samson R. Elsbernd is an associate attorney at the firm. Learn more about Wilke, Fleury and its practice at

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