The Padilla court disagreed, noting that the regulations in question simply required that the utilities be shut off or secured without assigning direct responsibility to any specific entity or person. Implied in the Padilla holding is the idea that while it is no great hardship to an owner of a billboard to install permanent safety measures, the general contractor of a temporary construction project should be able to delegate the safety of its subcontractor's employees and compliance with Cal OSHA regulations to the entity that best understands the nature, scope and day-to-day activity of the work itself--namely to the subcontractor.

The facts currently presented in Seabright are a hybrid of these two scenarios. The injured subcontractor employee was working around permanently affixed baggage handling equipment. Arguably, as in Evard, US Airways should be required to comply with safety regulations involving the machines it leases. However, the plaintiff's employer was specifically hired to maintain these machines, including the conveyor. The plaintiff is not the billboard worker changing the sign who happens to fall because of a lack of a Cal OSHA required safety line. Rather the plaintiff was the very person who was supposed to keep the conveyor functioning and he was injured performing that task.

The distinction is an important one since imposing the responsibility for all Cal OSHA and similar regulations onto owners and general contractors alone could completely swallow the Privette Doctrine because of the numerous regulations relative to construction projects and worksites. For that reason, we believe that the California Supreme Court will follow the narrow trail blazed by Padilla. In other words, the regulation in question must be tailored so that compliance by a specific entity or person is required making the regulation truly non delegable and imposed on that entity or person alone.

For subcontractors and their employees, it is important to recognize that the court allows property owners and general contractors to shift liability away from themselves in the absence of affirmative acts or omissions by them. This is particularly relevant in multi-contractor job site litigation in which legal responsibility might be shared by a number of defendants potentially reducing the overall exposure for a single contractor. But the Privette Doctrine may effectively eliminate the participation of the general and/or the owner in settlement discussions or judgment.

However, nothing in the doctrine prevents a subcontractor from negotiating an indemnity agreement in its favor and inserting clarifying language regarding who is responsible for specifically complying with certain safety regulations like those being considered in Seabright. Arm’s length contractual agreements which shift liability in exchange for negotiated benefits are still a viable option even in the face of tort doctrines like Privette since, well drafted, they are interpreted by the courts to be evidence of the party's intentions.

Privette appears to be here to stay in California. It should be considered when negotiating the next subcontract with an owner or general contractor.

An associate with Gray Duffy LLP, Michelle MacDonald has more than 20 years of litigation experience, notably personal injury, construction defect, Federal statutory claims, insurance law and governmental tort liability.