Judge Craig Griffin, Case Ludwig v. VFS Fire Titlehere Security Services 2023-07-24 Tentative Ruling

Judge: Craig Griffin, Case: Ludwig v. VFS Fire & Security Services, Date: 2023-07-24 Tentative Ruling

The Motion for Summary Judgment or in the alternative Summary Adjudication filed by Defendant Sarah Hales is GRANTED.

The Privette doctrine creates a rebuttable presumption that affects the burden of producing evidence on summary judgment. (Alvarez v. Seaside Transp. Servs., Inc. (2017) 13 Cal.App.5th 635, 642-643; Degala v. John Stewart Co. (2023) 88 Cal.App.5th 158, 166-167.) Once a defendant establishes that it hired an independent contractor to perform certain work, and that the plaintiff is an employee (or independent contractor) thereof, who was injured in the course of the work, the burden then shifts to plaintiff to produce evidence raising a triable issue of fact as to application of a Privette exception.

It is undisputed that Plaintiff owned and operated Live Wire Electric as a sole proprietor and that Live Wire Electric was hired by VFS as an independent contractor to perform electrical work on the premises. In the course of completing that work, Plaintiff was injured. As such, the rebuttable presumption of the Privette doctrine applies

The underlying principle to the Privette doctrine is the delegation of the manner in which the work is to be performed, thus the hirer also delegates the responsibility to ensure that the worksite is safe and the work is performed safely. (Gonzalez v. Mathis (2021) 12 Cal.5^th 29, 41.) Plaintiff asserts that the Hooker exception applies here, where the hirer retains control of workplace safety and exercises that control in a way that “affirmatively contributes” to the plaintiff’s injury (Hooker v. Dept. of Trans. (2002) 27 Cal.4th 198.) However, there is no indication here that Defendant retained any control of workplace safety or exercised that control in a way that contributed to plaintiff’s injury.

A landowner’s delegation of the duty to ensure the safety of contractor’s workers “encompasses a duty to determine whether the work can be performed safely despite a known hazard on the worksite.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 38.) “[O]nce the hazard is known to the contractor, the contractor has at its disposal all of the information necessary to determine whether or how the work can be performed safely.” (Id. at 50.) Here, it is undisputed that Plaintiff knew the condition of the switch gear and bus bars at the time of the accident, because he himself told Defendant’s employees that they were outdated and worn and that they should be replaced. As such it was Plaintiff’s duty to determine whether the work can be performed safely.

As to Plaintiff’s argument that Defendant is liable under an exception for providing defective or unsafe equipment, Plaintiff asserts the switch gear and bus bars were defective. McKown holds that a hirer is liable for injuries resulting from supplying a contractor's employee with defective equipment if the hirer supplied the defective equipment to the employee or exercises active control over the men employed or the operation of the equipment used by the independent contractor. McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4^th 219, 225.) Unlike McKown, where defendant provided unsafe equipment for use in completing the project the contractor was hired for, the “equipment” in question here was part of the work Plaintiff’s company was hired to complete, not a tool supplied to complete the job. As such, the unsafe equipment exception does not apply.

Plaintiff next relies on the non-delegable duty doctrine as found in Evard v. Southern California Edison (2007) 153 Cal.App.4th 137. As noted by Defendant, Plaintiff does not show facts to support an assertion that the switch gear and bus bar were unsafe or constituted an unsafe condition that would invoke the duty to promptly correct under California Code of Regulations, Title 8 § 2714(b). As such Plaintiff has not produced evidence raising a triable issue of fact as to the application of a Privette exception. As such the Motion for Summary Judgment is GRANTED.

Moving party to give notice.