Abraham Degala was attacked and seriously injured by unknown assailants while he was working at a construction site at the Hunters Point East-West housing complex in San Francisco.

The Hunters Point East-West construction project involved the rehabilitation of 27 buildings containing residential units. John Stewart Company (JSC) was the general partner of the limited partnership that owned the property, and as such signed the contract hiring Cahill Contractors, Inc. as the general contractor on the project. Cahill in turn hired Janus Corporation as a subcontractor to perform demolition work at the site. Abraham Degala was an employee of Janus, and one of its foremen. The project site was located in an area known to have a high rate of crime.

JSC and Cahill jointly made decisions as to the appropriate amount of site security. JSC and Cahill had weekly discussions about site security because of ongoing concerns about the safety of property and people at the site.

In the months and weeks leading up to the January 2017 attack on Degala, Cahill changed security measures from time to time, including closing the project site, in part as an apparent response to incidents in the neighborhood. In August 2016, Cahill stopped weekday overtime work at part of the project because of concerns about worker safety arising from neighborhood tensions. In mid-November 2016, after a shooting in the neighborhood, Cahill instructed workers to stop work before sundown. Later that month, after another shooting, Cahill instructed workers to stay indoors as much as possible while working and to eat lunch and take breaks inside.

The physical attack on Degala took place on the walkway between the two buildings, which was outside the fence line of the construction site. As an employee of Janus, Degala was covered by workers compensation insurance for his injuries.

Degala sued JSC and Cahill, seeking damages on the basis of negligence and premises liability. JSC and Cahill filed separate motions for summary judgment. The trial court granted the motions and judgments were entered for defendants.

Degala appealed, and the court of appeal concluded there are triable issues of fact as to whether the site owner and general contractor are liable to Degala under a retained control theory. Thus it reversed and remanded in the published case of Degala v. John Stewart Company  -A163130 (February 2023).

Because Degala, as an injured employee of a contractor (Janus), sued the hirer of the contractor (Cahill) and the landowner (JSC) in tort to recover for his injuries, this case implicates the Privette doctrine, a long-standing common law principle that a hirer or landowner is ordinarily not liable for injuries to contract workers, as set forth in Privette v. Superior Court (1993) 5 Cal.4th 689 and subsequent cases.

The trial court rejected Degala’s argument that defendants could be liable to him under the Hooker exception to the Privette doctrine announced in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 201-202 (Hooker) which applies when the hirer retains control over any part of the contractor’s work and exercises that control in a way that affirmatively contributes to the plaintiff’s injury.

The California Supreme Court in Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 269-270 recognized exceptions to the Privette doctrine, which “apply where delegation is either ineffective or incomplete.”

At issue in this case is the exception for incomplete delegation, recognized in Hooker. “[W]hen the hirer does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the [contractor’s] employee’s injury, the hirer may be liable in tort to the [contractor’s] employee.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 671 (Kinsman) [discussing Hooker, supra].)

Accordingly, “[i]f a hirer entrusts work to an independent contractor, but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.” (Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446 (Tverberg).)

Degala argues that the evidence shows that the site security measures in place at the time he was attacked were not reasonable in the circumstances; that JSC and Cahill were negligent in configuring the fences, removing security guards, and failing to monitor the on-site cameras during the day; and that their negligence contributed to his injuries.

“Whether the measures taken by JSC and Cahill were reasonable, and whether or to what extent the alleged unreasonableness of those measures contributed to Degala’s injuries are all questions of fact for a jury to resolve. On the record here, these issues cannot be resolved as a matter of law, and therefore it was error to grant summary judgment. ”