For several years, the California Supreme Court has wrestled with the issue of when the employee of an independent contractor can sue the company that hired the contractor for on-the-job injuries rather than just collect workers’ compensation benefits. Now the high court has issued two new opinions further clarifying when you can be sued for damages if a contractor’s employee gets injured.
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Widow Sues Over Crane Accident
In the first case, Paul Hooker, a crane operator for a Caltrans contractor, was killed when the crane he used on a Caltrans project tipped over. The crane became unstable because Hooker retracted the out-riggers to let other construction vehicles pass by and then extended the boom while the outriggers were still retracted. Caltrans engineers had authority to require contractors to correct dangerous conditions and to shut down operations until hazards were cleared. And the Caltrans safety representative on the job site knew that because the area wasn’t flagged off, crane operators frequently retracted their outriggers to let vehicles pass, which could make the crane unstable.Hooker’s widow collected workers’ comp benefits from the contractor’s insurer. Then she sued Caltrans, arguing that the agency negligently controlled job site safety.
Hirer Sued For Providing Unsafe Forklift
In the second case, Brian McKown worked for an independent contractor hired by Wal-Mart Stores Inc. to install sound systems. The job involved running wires and placing speakers in store ceilings, and Wal-Mart asked the contractor to use Wal-Mart’s forklifts whenever possible. The Wal-Mart forklift McKown used was missing a chain to secure the work platform to the forklift. While a co-worker drove the forklift, the platform, with McKown on it, hit a ceiling pipe and fell and McKown was injured. McKown sued Wal-Mart, alleging that the retailer negligently supplied unsafe equipment. A jury found Wal-Mart was 23% responsible for McKown’s injuries.
High Court Rules On Liability For Injuries To Contractor’s Employees
The California Supreme Court dismissed the lawsuit against Caltrans but upheld the jury verdict against Wal-Mart.Previous cases have established that you’re not liable for injuries to a contractor’s employee caused by the contractor’s negligence or for not exercising reasonable care in hiring a competent contractor. That’s because it would be unfair to impose liability on the hirer when the contractor, who was primarily responsible for causing the injuries, is only on the hook for workers’ comp coverage.
Hirer Must Contribute To Injury
The court concluded that the same rationale prevents a contractor’s injured employee from suing the hirer merely because the hirer controlled work site safety conditions and didn’t prevent or correct unsafe practices. However, a hirer can be liable for negligently exercising its control in a way that contributes to the injury. This could occur, for example, if the hirer gave improper directions or performed some other act—such as providing unsafe equipment—which contributed to the injury. A hirer that promised to undertake a safety measure but didn’t would also be liable if an injury resulted. The court concluded that in the Caltrans case, there was no evidence that Caltrans contributed to Hooker’s death. At most, Caltrans’ safety personnel knew about an unsafe practice and didn’t correct it. However, the court said Wal-Mart was liable because it actively contributed to McKown’s injury by furnishing—and requiring the contractor to use—an unsafe forklift.
5-Point Protection Plan
You can take steps now to guard against negligence claims should a contractor’s employee get hurt on the job:
- Obtain a hold-harmless agreement. Require the contractor to indemnify you in writing for all claims arising from the work to be performed, including those brought by the contractor’s employees.
- Confirm that the contractor is insured. Obtain copies of the policy declarations page of the contractor’s workers’ comp and general liability policy. You’ll be at greater risk of being sued by an injured employee if the contractor isn’t adequately insured.
- Check references. Find out whether the contractor has competently performed the same type of work before.
- Require safety assurances. Commit the contractor in writing to use the proper equipment and tools for the project and to train its employees for the work involved.
- Avoid unsafe practices. Make sure that your supervisors who are responsible for work-site safety scrupulously enforce safety rules for all workers, including contractors’ employees.