Khosh v. Staples Construction
208 Cal. Rptr. 3d 699
| Cal. Ct. App. | 2016Background
- The University hired Staples (general contractor) to install a backup electrical system; DK was high-voltage subcontractor and Myers hired to build/install switchgear; Khosh was a Myers employee performing work in an energized substation.
- Contract between Staples and the University required Staples to maintain safety, retain an on-site superintendent, submit written work plans for activities affecting operations (including shutdowns), and be "exclusively responsible" for subcontractor safety.
- The University scheduled a campus-wide electrical shutdown; Khosh began work in the energized substation about 2.5 hours before the shutdown and was injured by an arc flash roughly 30 minutes before the scheduled shutdown; Staples had no personnel on site at the time.
- Khosh sued Staples for negligence; Staples moved for summary judgment invoking the Privette rule (generally bars suits by contractor employees against hirers for work-related injuries).
- Khosh argued two exceptions: (1) retained-control/affirmative-contribution (Hooker) because Staples retained control and failed to perform promised safety measures; and (2) breach of a nondelegable statutory/regulatory duty (Cal. Code Regs., tit. 8, §2940(c) and NFPA 70E) causing injury.
- Trial court granted summary judgment for Staples after excluding much of Khosh’s expert evidence; the Court of Appeal affirmed, finding no evidence Staples affirmatively contributed to the injury and the cited regulations did not create a nondelegable duty here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Staples retained control and affirmatively contributed to Khosh's injury (retained-control exception to Privette) | Khosh: Staples’ contract obligations and promises (work plan, superintendent, compliance with codes) show retained control and its omissions affirmatively contributed to the injury | Staples: Although contract imposed safety duties, any failure to act was passive/omissive; no active participation or specific promise that was relied on | Court: Triable issue exists on retained control, but no evidence of affirmative contribution; omissions alone do not establish affirmative contribution, so exception fails |
| Whether regulatory duties (Cal. Code Regs. tit. 8 §2940(c); NFPA 70E) created nondelegable duties making Staples liable | Khosh: These regulations imposed nondelegable duties (supervision, written shutdown plan) and Staples breached them, causing injury | Staples: Duties arising from the contract/work are delegable to the subcontractor under Privette/SeaBright; regulations apply to specific work and thus were delegated | Court: Regulations relate to specific work and are delegable under SeaBright/Padilla; even if nondelegable, plaintiff still must show affirmative contribution under Hooker — which he did not |
| Whether exclusion of expert and documentary evidence requires reversal | Khosh: Excluded evidence would create triable issues on breach and causation | Staples: Exclusions were proper; alternatively, any error was harmless because excluded evidence would not create a triable issue | Court: Did not decide correctness of all evidentiary rulings because excluded evidence would not change outcome; any error would be harmless |
Key Cases Cited
- Privette v. Superior Court, 5 Cal.4th 689 (establishes rule barring contractor-employee suits against hirers for work-related injuries)
- Hooker v. Department of Transportation, 27 Cal.4th 198 (retained-control exception requires affirmative contribution by hirer)
- SeaBright Ins. Co. v. US Airways, Inc., 52 Cal.4th 590 (hirer presumptively delegates duty to provide safe workplace for contractor employees)
- Padilla v. Pomona College, 166 Cal.App.4th 661 (nondelegable-duty claims subject to Hooker affirmative-contribution requirement; regulatory duties tied to specific work are delegable)
- Evard v. Southern California Edison, 153 Cal.App.4th 137 (contrast: regulation imposed ongoing nondelegable duty where owner was uniquely positioned to ensure condition)
- Tverberg v. Fillner Construction, Inc., 202 Cal.App.4th 1439 (affirmative contribution may arise from a specific promise by hirer to take a safety action)
- Kinney v. CSB Construction, Inc., 87 Cal.App.4th 28 (evidence that general contractor retained active supervisory control supported triable issue)
- Michael v. Denbeste Transportation, Inc., 137 Cal.App.4th 1082 (general promise to be responsible for site safety did not create specific promise to take particular safety measures)