California Legal Brief

The Rule of Leonardo Cordero v. Ghilotti Construction Company, Inc. is that Cal-OSHA regulations do not create nondelegable duties that preclude application of the Privette doctrine, and a hirer's site preparation activities do not constitute retained control over the contractor's work methods, under circumstances where the hirer hired an independent contractor to perform specific work and the contractor's employee was injured while performing that work.

Appeal from judgment after summary judgment in Superior Court, San Mateo County.

Plaintiff Appellant was Leonardo Cordero — an employee of independent contractor Camblin Steel Service, Inc. who was injured while installing rebar reinforcement on a pedestrian bridge project.

Defendant Respondent was Ghilotti Construction Company, Inc. — the turnkey contractor who subcontracted the rebar reinforcing work to Camblin.

The suit sounded in industrial injury damages. [No cross-claims described.]

The key substantive facts leading to the suit were Cordero worked for Camblin, which was hired by Ghilotti to install rebar reinforcement for bridge support columns. On the morning Camblin was to work at "Bent 10," Ghilotti's crew "dewatered" the area by pumping standing water, cleaning mud, and leaving planks for safe access. Cordero climbed up the rebar structure but fell when his boot slipped before he could secure his positioning belt. Cordero had stepped in muddy areas earlier but "really didn't pay attention" to the mud on his boots.

The procedural result leading to the Appeal: The trial court granted summary judgment for defendant, ruling that the Privette doctrine applied and created a presumption that workplace safety duties were delegated to the independent contractor, and plaintiff failed to establish any exceptions to this presumption.

The key question(s) on Appeal: 1. Whether Cal-OSHA regulation section 1711 imposed a nondelegable duty on Ghilotti that precluded application of the Privette doctrine. 2. Whether Ghilotti factually delegated workplace safety to Camblin. 3. Whether the retained control exception to Privette applied based on Ghilotti's site preparation activities.

The Appellate Court held that Cal-OSHA regulations do not create nondelegable duties that overcome the Privette presumption of delegation, following SeaBright, and that a hirer's site preparation activities (dewatering, cleaning, laying access planks) do not constitute retained control over the contractor's work methods where there was no evidence the hirer directed how the contractor should perform its specialized work or interfered with the contractor's safety decisions.

The case is inapplicable when the hirer actually directs the contractor to perform work in a specific manner, interferes with the contractor's safety decisions, promises to remedy a known hazard and fails to follow through, or where statutory/regulatory provisions expressly indicate an intent to limit Privette's application.

The case leaves open whether regulatory provisions could ever be written with sufficiently clear language to create truly nondelegable duties that would limit Privette's application, and what specific factual circumstances might constitute impermissible interference with a contractor's work methods versus permissible site preparation.