From The San Diego Tribune, Dan Eaton discusses a case in which an independent contractor window-washer who did not carry workers compensation insurance sought to recover damages for his injury from the homeowner, Johnny Mathis. Dan writes:
California law has long presumed that when a landowner hires an independent contractor to perform work, the landowner delegates to the independent contractor all responsibility for workplace safety. The landowner consequently is not liable for injuries to the independent contractor and its workers caused by hazards known to the contractor.
An independent contractor typically may factor the cost of added safety precautions or increased safety risk into the contract price. The contractor’s legal obligation to carry workers compensation insurance for his workers, and ability to carry it for himself, ensures injured workers will receive at least some compensation.
There are two ways this no-liability rule may be rebutted. The first is where the hirer-landowner exerts control over any part of the contractor’s work in a way that “affirmatively contributes to the worker’s injuries.” The second, not applicable in this case, is where the independent contractor’s injuries result from a hazard concealed from the contractor.
The court identified five ways a hirer’s control over the project’s safety may expose the hirer to liability for injuries to the independent contractor: “directing the manner or methods in which the contractor performs the work; interfering with the contractor’s decisions regarding the appropriate safety measures to adopt; requesting the contractor to use the hirer’s own defective equipment in performing the work; contractually prohibiting the contractor from implementing a necessary safety precaution; or reneging on a promise to remedy a known hazard.” Note that such control also risks rendering the worker the hirer’s employee, instead of an independent contractor.
The court concluded that making a landowner additionally liable for injuries suffered by an independent contractor who could not reasonably guard against the injury-causing hazard would require the landowner to assess and address known workplace hazards on his property. “This makes little sense given that the landowner typically hires an independent contractor precisely because of the contractor’s expertise in the contracted-for work and the hirer usually has no right to interfere with the contractor’s decisions regarding safety or otherwise control the contractor’s work.”
“Landowners, like Mathis, hire independent contractors precisely because of their expertise in the contracted-for work,” said the court. “This expertise puts contractors in a better position to determine whether they can protect their workers against a known hazard on the worksite and whether the work can be performed safely despite the hazard.”
It did not matter legally that Mathis did not fix the dangerous condition of the roof after the contractor told Mathis’s staff it needed to be repaired, absent a promise from Mathis or his staff to repair the roof or pressure from them to do the work anyway.