CalTrans contracted with Viking Construction Company for a construction project, known as the Chico 99 Project, to widen roadways and bridges on a state highway in Butte County. The Chico 99 Project included work on a bridge 21 feet above the ground in the Bidwell Park area.

In 2012, Deborah Davis, the CalTrans assistant resident engineer, told Viking’s foreman, Robert Burns, that the openings in a temporary traffic screen, known as a gawk screen or a glare screen were to be filled in by the end of the shift, 5:00 a.m. The purpose of the screen is to prevent motorists from being distracted by the construction work and to protect workers from the glare of headlights. The screen had been installed in accordance with the standard plans.

Burns and Bradley Capps, an employee of Viking, finished their scheduled work and began to install additional screens where necessary. On the final installation, while it was still dark, as Burns was adjusting the light and Capps unstrapped the screen from the truck, Burns heard a sound like a boot scuffing on concrete. When he turned, Capps had fallen from the bridge. Burns had fall protection for both men in the truck with him, but had not used it. Capps fell to his death from the bridge.

Capps’s surviving wife and children, brought suit against CalTrans, alleging the accident occurred while Capps was performing work at the specific direction of CalTrans. Plaintiffs had received workers’ compensation benefits for the accident.

CalTrans successfully moved for summary judgment on the basis that it was not liable per Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette), which generally prohibits an independent contractor or his employees from suing the hirer of the contractor for workplace injuries, and the exception for negligent exercise of retained control did not apply. The court of appeal affirmed in the unpublished case of Capps v Dept. of Transportation.

On appeal, plaintiffs contend it was error to grant summary judgment because triable issues of fact remain as to whether CalTrans (the hirer) affirmatively contributed to Capps’s death by interfering with Viking’s (the contractor’s) work.

Specifically, they contend CalTrans interfered with Viking’s work by going outside the established chain of command to order unscheduled work. They further contend the trial court erred in requiring them to prove that CalTrans retained control while the law requires only that they raise a triable issue as to that fact. Finally, they contend all of their evidentiary objections are preserved for appeal because the trial court did not rule on them.

CalTrans provided evidence that under the contract, responsibility for worker safety was delegated to Viking. CalTrans did not give Viking any instructions as to how to fill the gaps in the screen, did not provide any equipment, and did not give any advice as to safety measures.

CalTrans provided excerpts of the deposition of Burns in which he testified he had fall protection with him but did not use it; he had removed or installed these screens at night “many, many times” and knew how to do it safely. Viking’s project manager Quiggle drove by and saw Burns and Capps doing the work and did not give them any safety instructions.

Privette held peculiar risk liability did not extend to employees of an independent contractor when “the 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 doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.”

The court of appeal found no triable issue as to whether CalTrans retained and negligently exercised control over Capps’s work at the time of his fall.

The manner in which CalTrans directed work to be done did not cause it to retain control over the manner in which Viking performed the work.