Yosemite Community College District hired contractors to complete a remodeling project at the campus that included roof repair and replacement on several buildings. Kitchell CEM was the general contractor or program manager for the project. This included developing and implementing a program-wide safety program. Western Single Ply-Nevada was the roofing subcontractor. The plaintiff Ramon Mora was its employee.
In 2015 a 2×4, without the typical accompanying 2×6, was anchored to the edge of the roof to use as scaffolding. While Mora was on the 2×4 anchor board without a safety harness, the board gave way and he fell over 20 feet off the unprotected roof edge.
Mora filed a civil action that alleged General Contractor owed him a duty of care and breached that duty by failing to develop and implement a safety program that included fall prevention and protection measures.
The trial court sustained the General Contractor’s demurrer. The order stated (1) workers’ compensation was “the sole and exclusive remedy for employees who sustain injuries while performing work in the scope of their employment”; (2) General Contractor “did not have the requisite degree of control over the property to support a claim for Premises Liability”; and (3) the negligence allegations were insufficient to state a cause of action against General Contractor. The Court of Appeal reversed in the unpublished case of Mora v Kitchell CEM.
The Privette doctrine will bar causes of action by an independent contractor’s employee against a non-negligent hirer that did not affirmatively act. A hirer can be a landowner, general contractor, or any other entity that hires an independent contractor.
Plaintiff’s complaint alleges that Roofing Subcontractor “was a subcontractor hired to perform reroofing work at the SUBJECT PREMISES.” The complaint does not state who hired Roofing Subcontractor “to perform reroofing work.” Thus, on the face of the complaint, the hirer of Roofing Subcontractor is not clearly and affirmatively shown. Consequently, at the pleading stage, the Privette doctrine cannot be a bar to the complaint because the hirer is not identified.
It is worthy of note that this opinion will likely be of limited value to this plaintiff. The identical issues will be tested again after a motion for summary judgment. Such a motion can included undisputed facts that establish the defendant as the General Contractor, and thus protected by Privette. This appeal is the result of Mora’s sixth amended complaint, and Mora has undoubtedly had difficulty establishing his case thus far.