The California Workers’ Compensation Act provides that the exclusive remedy of an injury to an employee arising out of and in the course of employment is the right to recover workers’ compensation benefits. (Lab. Code, secs. 3600(a), 3602(a).) The courts in California have consistently upheld that workers’ compensation benefits are the exclusive remedy for an employee against an employer for a workplace injury. (Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1058-1059.) That being said, the courts have also carved out a few notable exceptions in which an employer can still be liable for an employee’s injuries even when the right to workers’ compensation benefits exists as a remedy.
The courts have upheld worker’s compensation as an exclusive remedy in several situations. Even if an injury is caused by an employer’s negligent or reckless failure to provide adequate premises security despite knowledge of danger to its employees, workers’ compensation benefits are the exclusive remedy. (Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1263.) The Arendell case involved a situation in which a third party robbed a store where employees were assaulted at gunpoint, bound, gagged, threatened, robbed, and even kidnapped.(Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261.) The court held that even in the case that the employer knew that there was a high crime risk, worker’s compensation was the exclusive remedy for the employees.(Id. at 1263.)
In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that when an employee of an independent contractor hired to do dangerous work suffers a work-related injury, the employee cannot recover against the individual who retained the independent contractor. (Id. at p.692.) In subsequent cases, Privette was found to apply in several circumstances, with some notable exceptions. Specifically, the Privette doctrine allows for liability when the hirer of the independent contractor retained control over safety conditions at the worksite, and negligently exercised that retained control in a manner which affirmatively contributed to the employee’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.) Hooker outlined circumstances in which an employer retained liability even in an instance in which the right to workers’ compensation benefits were an available remedy, although generally the Privette presumption must be overcome in order to assert liability of the employer.
A hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 210.) Under the retained control exception to the Privette doctrine, an affirmative contribution occurs when a general contractor “is actively involved in, or asserts control over, the manner of performance of the contracted work”. (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644.) In the alternative, the employee may also hold the hirer liable if the employee can show that the hirer failed to undertake a promised safety measure. (Id. at p.645.) Passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. (Tverberg v. Fillner Construction, Inc (2012) 202 Cal.App.4th 1439, 1446.)
In Alvarez, the court applied the test regarding a particular promised safety measure and found that because the plaintiff did not provide evidence that defendants promised to undertake a particular safety measure, there was no liability. (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 645.) Furthermore, the court in Alvarez found that even though the defendant was obligated to comply with the Marine Safety Code and violated the code, the defendants had not promised the plaintiffs that they would comply with the Marine Safety Code, therefore Privette still applied. Ibid. Even the assumption that an employer would comply with an applicable code was not enough to establish liability if the employer did not specifically promise to comply with that code.
Another notable exception to the Privette doctrine is that the hirer as landowner may be independently liable to a contractor’s employee even if it did not retain control over the work if it reasonably knows or should know of a concealed, pre-existing hazardous condition on its premises, the contractor does not know and could not reasonably ascertain the condition, and the landowner fails to warn the contractor. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675.) The test outlined in Kinsman is a further exemption to the Privette presumption, and outlines circumstances in which retained control is not required in order for a hirer to retain liability for an employee’s injuries.
Although Privette and its progeny discuss situations and circumstances in which an employer can retain liability despite the right to workers’ compensation benefits existing as a remedy, workers’ compensation benefits exist as the exclusive remedy for employees for an injury arising out of and occurring in the course of employment. The Privette presumption must be properly rebutted in order for an employer to be liable for an employee’s workplace injury.
