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March 28, 2011

Summary Judgment Granted for General Contractor

Sacramento Superior Court granted summary judgment for a general contractor against plaintiff, an employee of a subcontractor. Plaintiff fell through a skylight as he was attempting to lift a heavy box of flashing to the roof. Plaintiff's personal injury negligence action alleged that defendant did not warn or protect him from the danger of falling through the skylight. The contract between defendant and the subcontractor required the subcontractor to provide its workers with fall protection equipment, which plaintiff was not wearing before the incident.

Defendant's motion contended it owed no duty to plaintiff under Privette v. Superior Court (1993) 5 Cal 4th 689 and its progeny.  (The Privette court held that an employee of an independent contractor could not state a negligence claim against the hirer of that independent contractor.) Defendant also expressly delegated to the subcontractor the responsibility for plaintiff’s safety.  Plaintiff’s opposition contended Privette was distinguished, because defendant allegedly affirmatively contributed to plaintiff’s injuries; Defendant's alleged non-provision of fall protection equipment to plaintiff demonstrated defandant's direct liability; and thus had a duty to warn plaintiff of the allegedly non-obvious skylight hazard.

The court determined summary judgment was properly granted, because defendant did not affirmatively contribute to plaintiff’s injuries.  The subcontractor made all decisions regarding how its employees lifted flashing, and defendant properly delegated to the subcontractor the responsibility for providing fall protection equipment.  Defendant’s alleged “mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff.”  (Hooker v. Department of Transportation (2002) 27 Cal. 4th 198, 209.)   Plaintiff also conceded he was aware of the skylight, and knew that he should not step on it, so plaintiff could not shift the burden to defendant to have warned him of it.  (Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, 675.)

Defendant was represented by Senior Associate Erik P. Weiss.








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