Question

I am employed by a roofing company. Recently, I was working on a jobsite installing a new roof and fell off of a ladder. As a result, I broke several bones and sustained internal injuries. I have been told that my only remedy is workers’ compensation. I think the person that hired us to install the roof should also bear some responsibility. Can I sue him?

Answer:

Whether or not an injured employee of an independent contractor can sue the hirer of the contractor, in addition to receiving workers’ compensation benefits, depends on a variety of factors. As a general rule, if someone hires an independent contractor, the hirer is not liable to third parties, such as the contractor’s employees, for injuries that were caused by the contractor’s own negligence in performing the work. The courts in California have reached that conclusion for two reasons: the hirer does not have a right to control how the work is performed, and the contractor can better absorb losses by including the cost of safety precautions and insurance in the contract price. With time, this general rule has become subject to many exceptions; however, the majority of those exceptions only apply to the hirer’s liability to “others” and not to the contractor’s employees. Nevertheless, the courts in California have held that there are some situations where a hirer can be held liable to the employees of the contractor he or she hired.

If the hirer retained control over the safety conditions at the worksite, and by doing so affirmatively contributed to the employee’s injuries, the hirer could be held liable for that employee’s injuries. In other words, in addition to receiving workers’ compensation benefits, the employee could sue the individual or company that hired the contractor for whom he or she is employed. The “affirmative contribution” to the injury can include a situation where a hirer promises to undertake a specific safety measure and then fails to do so, resulting in injury to one of the contractor’s employees.

Another situation where the hirer of the contractor may be held liable to the contractor’s employees is where a statute or regulation requires that specific precautions be taken for the safety of “others.” Those “others” may include the contractor’s employees if the hirer’s failure to comply with the statute or regulation “affirmatively contributes” to the employee’s injuries.

For example, a California appellate court recently held that the hirer of a contractor could be held liable to the contractor’s employees because it did not comply with Fire Code requirements. The employee was injured in an explosion while working for an independent contractor. He was cleaning fuel tanks and was severely burned when a petroleum products tank on the property exploded. He sued the owner of the property. Under the Fire Code, the property owner was required to have fire extinguishers within 75 feet of those portions of the facility where fires are likely to occur. The property owner was subject to this section of the Fire Code because he stored flammable liquids on the property. In fact, the property owner had fire extinguishers approximately 50 yards away from where the accident happened. As a result, the flames on the employee’s clothing were not extinguished as quickly as they would have been if a fire extinguisher had been closer, and the burns suffered by the employee were more severe. The court held that the property owner could be held liable for the employee’s injuries based on its failure to comply with the regulatory duties set forth in the Fire Code. The court looked at the fact that the employee’s injuries were worse because there was no fire extinguisher nearby, finding that therefore, the property owner “affirmatively contributed” to the employee’s injuries.

In your situation, where you fell from a ladder and injured yourself, to successfully sue the hirer of the roofing company, you would have to show that the hirer somehow affirmatively contributed to your injury. For example, if the hirer retained control over the safety conditions of the roofing job at the worksite and promised to undertake a safety measure that would have kept you from falling from the ladder, you may have a basis for a lawsuit. Likewise, if the hirer was subject to a statute or regulation that he or she did not comply with, and that lack of compliance affirmatively contributed to your injury, you could likely sue the hirer. Otherwise, you would be limited to receiving workers’ compensation benefits.
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