Key Decisions

July 2012 – Protection Under Workers Compensation Law

(filed under: Key Decisions Archive | August 16, 2012)

A General Contractor’s Scheduling Of Work And Failure To Call A “Rain Day” Did Not Constitute Such Retained Control As To Deprive It Of Protection Under The Workers’ Compensation Laws

Brannan v. Lathrop Construction Associates, Inc.
(Cal. Ct. of App., 1st Dist.), filed June 12, 2012


Brian Brannan worked for a masonry subcontractor on a construction project. The general contractor was Lathrop Construction Associates.

Brannan slipped on wet scaffolding belonging to another subcontractor who was working in the same area as he was and injured his back. He sued Lathrop, alleging his injuries were caused by Lathrop’s negligence in sequencing and coordinating construction work at the site, and failing to call a “rain day” to protect workers from dangerous conditions caused by slippery surfaces.

Lathrop moved successfully for summary judgment under the Privette-Toland doctrine. The trial court granted Lathrop’s motion finding that Brannan’s sole remedy was through workers’ compensation.


The Court of Appeal affirmed.

The California Supreme Court summarized the Privette-Toland doctrine as follows:

Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. . . . 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 safety of the specific workplace that is the subject of the contract.

One of the doctrine’s underpinnings is the availability of workers’ compensation to the injured employee:

[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the [law] should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.

However, there are some limited exceptions to the doctrine. One is based on the case of Hooker v. Department of Transportation, 27 Cal.4th 198 (2002). There, the Court considered whether the hirer of an independent contractor could be held liable for injuries to the contractor’s employee resulting from the contractor’s negligence under the theory the hirer retained control of the work but negligently exercised that control. It held: “a hirer of an independent contractor was not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but was liable to such an employee insofar as its exercise of retained control affirmatively contributed to the employee’s injuries.”

An assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. Likewise, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.

The court concluded that Lathrop’s act of scheduling the work did not subject it to liability under Hooker.

Lathrop did not direct Brannan’s work, and did not tell Brannan to gain access under the plaster scaffold the way he did. The court held that although Brannan contends he was left with no other option than to climb over the rungs of the scaffold, that fact did not support a finding of liability. It did, however, note that “This would be a different case if Brannan’s foreman or one of its employees had asked Lathrop to remove the scaffolding for safety reasons, Lathrop had promised to do so, and then it negligently failed to follow through.”


Whether work place injuries are confined to workers’ compensation typically turns on close scrutiny of the precise factual circumstances. The court’s indication that a simple job site verbal request could have changed the outcome of the case reflects the detailed nature of the needed factual scrutiny.