Sherry Horne et al. v. Ahern Rentals, Inc.
In the recent California Court of Appeal opinion, Sherry Horne et al. v. Ahern Rentals, Inc., (Court of Appeal of California, Second App. Dist., Div. Eight, Case No. B299605 (June 10, 2020)) the family of an employee of an independent contractor sued the hirer of the independent contractor, alleging the defendant’s negligence was a substantial factor in causing the employee’s death. Therein, the Court of Appeal affirmed the trial court’s entry of summary judgment as to the plaintiffs’ claims of wrongful death in favor of the defendant, finding the plaintiffs presented no evidence that the defendant retained control over the safety conditions of the workplace where the employee was killed.
The key takeaway from this case is that to avoid liability for injury to an independent contractor, the hirer should not actively direct the independent contractor to do the work in a particular way or fail to undertake a particular safety measure the hirer promised to do.
Factual Background
The decedent, Ruben Dickerson, was employed by 24-Hour Tire Services, Inc. (“24-Hour Tire”), a tire shop providing tire repair and replacement services. The defendant was Ahern Rentals, Inc. (“Ahern”), which leases forklifts and other heavy-duty construction vehicles. In November 2015, Dickerson, acting within the course and scope of his duties for 24-Hour Tire, traveled to Ahern’s premises, and in the process of replacing a tire on an Ahern forklift was killed.
Dickerson’s surviving heirs, collectively the “plaintiffs”, were paid workers’ compensation benefits by 24-Hour Tire’s workers’ compensation insurer. The plaintiffs then filed suit against Ahern asserting a single cause of action for wrongful death and alleging Ahern negligently failed to provide a stable and level surface for the tire change, allowed the tire change to proceed with the forklift’s boom raised, and failed to properly train its employees and independent contractors to whom Ahern assigned the maintenance and storage of the forklift.
The trial court granted summary judgment in favor of Ahern, finding that while Ahern retained control over its worksite as a whole, no triable issue of fact existed as to the lack of Ahern’s affirmative contribution to Dickerson’s death.
Privette Rule
In reaching its holding, the Court of Appeal first noted the “Privette Rule,” established in Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette), which holds that when “injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage,” the employee cannot “seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.” (Privette, 5 Cal.4th at 731.) In this instance, such rule bars plaintiffs from suing Ahern for wrongful death.
Hooker Exception to Privette Rule
However, the plaintiffs invoked an exception to the Privette Rule, as set forth in Hooker v. Department of Transportation (2002) 27 Cal.4th 198. Therein, the California Supreme Court held a hirer of an independent contractor is not liable to the contractor’s employee “merely because the hirer retained control over safety conditions at a worksite,” but only where the “hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.” (Hooker, 27 Cal.4th at 202.) Such “affirmative contribution” by the hirer can be demonstrated in the form of “actively directing a contractor or contractor’s employee,” or making negligently unfulfilled “promises to undertake a particular safety measure.” (Id. at 212, fn. 3.)
Court of Appeal Opinion
On appeal, the plaintiffs argued Ahern “retained control over the safety conditions of the forklift by performing the initial set-up for tire service, “because only defendant was lawfully permitted to operate the forklift,” and contend 24-Hour Tire “was not qualified to re-park the forklift or lower the boom” and its “employees were not trained to know whether the forklift had been shut down properly.” The plaintiffs’ evidence consisted of the forklift manufacturer’s operation and safety manual, which “instructs that the boom should be lowered when the forklift is in the parked position,” while the boom was in the top position on the day of the incident; that none of 24-Hour Tire’s employees are trained in the use or service of a forklift, nor was any such training provided by Ahern; and the opinion of an accident reconstruction and safety engineer, who opined that “‘[t]he raised boom on the Forklift, in combination with it being parked on an uneven surface, were substantial factors causing the Forklift to collapse onto Decedent.’”
In addition, the Court of Appeal considered the following evidence offered by Ahern:
- A few days prior to the accident, “[t]wo employees of 24-Hour Tire used four jack stands to raise and support the weight of the forklift,” having “selected which jack stands to use from among those in [Ahern’s] forklift storage warehouse.”
- Steven Daetweiler, 24-Hour Tire’s manager, directed Dickerson’s work on the day of the accident; he “did not examine the condition of the forklift as it sat on the jack stands,” nor did he make any “effort to determine if his employees had selected appropriate-capacity jack stands for the weight of the forklift.”
- While there was “‘some unlevelness’ in the asphalt surface, this “did not cause [Daetweiler] any concern about working on the forklift.”
- Daetweiler testified Ahern “did not handle any of the tire changing and did not assist in performing any of the work” and that “[n]o one with 24-Hour Tire told defendant in advance what 24-Hour Tire planned to do.”
The Court of Appeal concluded plaintiffs’ evidence showed, at best, Ahern “passively permitted an unsafe condition,” which “does not amount to actively contributing to how the job is done.” In concluding the same, the court cited the Hooker principles firmly, stating a hirer defendant “may be liable for an injury to an employee of a contractor only if the hirer actively directs the contractor or contractor’s employee to do the work in a particular way or fails to undertake a particular safety measurer the hirer promised to do."