Bhupinder Kalkat hired JKD Construction as the framing contractor for the construction of his large house in Live Oak California. The contract provided that JKD was responsible for compliance with all Cal-OSHA requirements for safety and fall protection. The contract also required JKD to carry current workers’ compensation and liability insurance.

Amador Gudino was an employee of JKD and worked on the framing of Kalkat’s house. On October 18, 2012, he fell to death while working on a second story balcony. A Cal-OSHA investigation determined the framing work was conducted without adequate fall protection. Cal-OSHA found several violations, most relating to the absence of fall protection.

Gudino’s survivors and heirs, his wife and three children, received workers’ compensation benefits. The heirs alleged entitlement to increased benefits due to JKD’s serious and willful misconduct. The matter was resolved by a compromise and release.

The heirs brought suit against Kalkat and others. The complaint alleged negligent exercise of retained control, negligent provision of required safeguards and precautions, negligent provision of unsafe equipment, negligent selection of contractor, and breach of a non-delegable duty.

Kalkat moved for summary judgment, contending workers’ compensation was the heirs’ exclusive remedy. Kalkat argued that under Privette v. Superior Court (1993) 5 Cal.4th 689 he had no liability as the hirer of an independent contractor.

The heirs argued that under McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 (McKown) a hirer of an independent contractor was liable for furnishing unsafe or defective equipment and that was what happened here. Further, Kalkat knew there were inadequate fall protections but failed to provide adequate alternatives. He provided a forklift that he knew had defective brakes. The heirs argued this evidence supported the inference that Kalkat’s actions were unreasonable and negligent.

The trial court granted the motion for summary judgment, finding no evidence the forklift contributed to the accident. The court entered judgment for Kalkat. The judgment was affirmed in the unpublished case of Gudino v. Kalkat.

On appeal, the heirs contend Privette does not control because Kalkat furnished unsafe equipment–a forklift with defective brakes–that affirmatively contributed to Gudino’s death. They further contend there is a triable issue of fact as to whether Kalkat retained control over safety conditions at the job site and negligently exercised that control.

After a review of the law and evidence, the Court of Appeal ruled that the heirs failed to raise a triable issue of fact to bring this case within an exception to the limits on liability explained by Privette.