In Delgadillo v. Television Center, Inc., Cal. Ct. App. 2d Dist. no. B270985 (filed Feb. 2, 2018, ordered published Feb. 27, 2018) (slip opinion linked here), the 2nd District Court of Appeal affirmed summary judgment for a building owner in a wrongful-death case involving a window washer who tragically fell to his death while washing windows on a commercial building in Hollywood. The negligence claim was premised on the alleged failure of the building to install structural roof anchors (required by statute) from which the decedent could attach a descent apparatus.
Under the Privette doctrine (stemming from Privette v. Superior Court, 5 Cal. 4th 689 (1993)), building owners are not liable for injuries sustained by a contractor's employees unless the building owner's affirmative conduct contributed to the injuries. (For a discussion of the Privette doctrine, see slip. op. at 11-12.)
What about the building owner's failure to install statutorily required structural roof anchors? Was this failure a nondelegable duty? Was this failure affirmative conduct that contributed to the injury? According to the Delgadillo court, no and no.
First, the Delgadillo court held the duty to provide a safe workplace was essentially delegated by the building owner to the contractor as a matter of law. Under SeaBright Ins. Co. v. US Airways, Inc., 52 Cal. 4th 590 (2011), when the violation of a statutory duty gives rise to an injury, the Privette doctrine still bars recovery against the violator where the injury is suffered by an employee of a contractor---the employee's remedy is a worker's compensation claim against the contractor since the injury occurred during the course and scope of employment. See slip op. at 13-14. The reason is that "the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory safety requirements." Slip op. at 14, quoting SeaBright, 52 Cal. 4th at 594 (italics in original). The reason, according to the SeaBright court, is that duties are only owed to the contractor's employees because of the work that the contractor was performing. Slip op. at 15.
Second, the failure to install the statutorily required roof anchors was not an affirmative act and direction to the contractor and its employees. To the contrary, the contractor and its employees made all decisions about how the job was done; the building-owner defendant did not direct how the work was performed. Slip op. at 20. The result? "[P]assive provision of an unsafe workplace" is not actionable--"the failure to provide safety equipment does not constitute an 'affirmative contribution' to an injury...." Slip op. at 21.