Date: 02-27-2018

Case Style: Luz Elena Delgadillo v. Television Center, Inc.

Case Number: B270985

Judge: Edmon, P.J.

Court: California Court of Appeals Second Appellate District Division Threeon appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Abir Cohen Treyzon Salo, Federico C. Sayre, Boris Treyzon and Cynthia Goodman

Defendant's Attorney: Robert E. Henke

Description: Plaintiffs Luz Elena Delgadillo, Christian Franco, and
Valeria Franco (plaintiffs) are the surviving wife and children,
respectively, of Salvador Franco (decedent). Decedent fell to his
death while washing windows on a building owned by defendant
Television Center, Inc. (TCI).
Plaintiffs sued TCI for negligence and negligence per se,
alleging that decedent was fatally injured because TCI failed to
install structural roof anchors, as required by statute, to which
decedent could attach a descent apparatus. TCI moved for
summary judgment, contending that plaintiffs’ suit was barred
by Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and
subsequent cases. The trial court agreed and granted summary
judgment for TCI.
We affirm. Privette and its progeny hold that when a
property owner hires an independent contractor, the property
owner is not liable for injuries sustained by the contractor’s
employees unless the defendant’s affirmative conduct contributed
to the injuries. In the present case, the undisputed evidence was
that TCI did not direct how the window washing should be done
nor otherwise interfere with the means or methods of
accomplishing the work. Accordingly, summary judgment was
properly granted.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Underlying Facts
TCI owns a three-story commercial building located at
6311 Romaine Street, Hollywood, California (the building). In
2011, TCI contracted with Chamberlin Building Services (CBS), a
licensed contractor, to wash the building’s windows. Decedent
worked as a supervisor/window cleaner for CBS.
3
On June 20, 2011, while decedent was washing the
building’s windows, his descent apparatus detached and he fell to
his death. He was survived by his wife and children.
Decedent’s wife and children filed the present action
against TCI on June 20, 2013. The operative complaint alleges
that TCI failed to equip the building with structural roof anchors
to which a descent apparatus could be attached, in violation of
sections 7325 through 7332 of the Labor Code, and section 3286,
subdivision (a)(4), of title 8 of the California Code of Regulations,
giving rise to causes of action for negligence and negligence per
se.
II.
TCI’s Motion for Summary Judgment
TCI filed a motion for summary judgment on August 27,
2015. It asserted that plaintiffs were barred from recovering by
Privette and its progeny because TCI had contracted with CBS to
wash the building’s windows and had not retained control over
the manner in which the work would be done. In support of its
motion for summary judgment, TCI introduced evidence of the
following:
TCI purchased the building in approximately 1986. In
April 2010, TCI contracted with CM Cleaning Solutions, Inc.
(CM Cleaning) to provide the building with cleaning/janitorial
services.
In 2010, CM Cleaning, on behalf of TCI, solicited a proposal
from CBS to wash the building’s windows. In 2011, CBS’s
proposal was accepted. TCI did not provide CM Cleaning or CBS
with a written assurance that it had anchor points that could
safely support 5000 kilograms of weight.
4
When CBS initially submitted its proposal to TCI, it
planned to use either a “Tucker Pole System” (a water-fed pole
with an attached brush) or ladders to reach the building’s upperstory
windows. However, when Edward Chamberlin of CBS, and
two of his employees, George Gonzalez and decedent, walked
around the building on June 20, 2011, they observed wires, lines,
and telephone poles on the building’s south side. Because of the
proximity of the wires to the building, Chamberlin was concerned
about a danger of electrocution, and therefore decided not to use
water-fed poles to reach the upper-story windows.
Chamberlin, Gonzalez, and decedent requested access to
the building’s roof. There, they determined that one side of the
building had adequate anchor points to which they could attach a
controlled descent apparatus; the other side did not.1 They
therefore decided that Gonzalez and decedent would rappel off
the building from the roof using roof anchor points on the first
day, and would construct a steel cable tie-back anchor system to
which they could connect on the second day.
It was CBS’s policy that two connectors were required
when rappelling off a building: one primary line and one safety
line. However, late in the morning of the first day, decedent
attached his line to only a single connector—an angle iron
bracket supporting the air conditioning unit on the roof, attached
to a small piece of wood—which was not an acceptable anchor
point. The bracket to which decedent attached his line failed,
and decedent fell to his death.
Before CBS began cleaning the building’s windows on
June 20, 2011, building security had allowed Chamberlin,

1 Plaintiffs dispute that there were any adequate roof anchor
points.
5
Gonzalez, and decedent access to the building’s roof, but no one
from TCI or CM Cleaning accompanied the three men when they
inspected the roof. CBS and its employees made all decisions
about how the window-washing would be accomplished.
The window-washing equipment used on the job was
owned, inspected, and maintained by CBS.
2 Decedent’s family
received workers’ compensation benefits following his death.
III.
Plaintiffs’ Opposition to Motion
for Summary Judgment
Plaintiffs opposed the motion for summary judgment.
Citing McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219
(McKown), plaintiffs asserted that if the hirer of an independent
contractor provides defective tools or equipment to the
contractor’s employees, the hirer may be held liable for any
resulting injuries. Plaintiffs urged there thus were triable issues
of fact in the present case as to (1) whether the defective anchor
points on the building’s roof were “tools or equipment” within the
meaning of McKown, and (2) whether TCI retained control of the
workplace in a way that affirmatively contributed to decedent’s
death.
In support of their opposition, plaintiffs submitted the
declaration of Amit Gupta, a senior safety engineer for the
California Division of Occupational Safety and Health Research
and Standards Development Safety Unit. Gupta’s declaration
stated in relevant part as follows:

2 Plaintiffs dispute this assertion only insofar as they
contend that the building’s structural anchor points are window
washing equipment.
6
“During the investigation of the death of Salvador Franco, I
met with Ana Ramirez, Property Manager of [TCI] and I advised
her of the following:
“1. The rigging for the Controlled Descent Apparatus
(CDA) gave way causing [decedent] to fall approximately fifty
(50) feet to the concrete down below.
“2. California Labor Code Section[s] 7325-7332 require
that owners of all buildings three or more stories provide anchors
or other equipment detailed in Article 5 and 6 of the General
Industrial Safety Orders.
“3. The building referenced is not equipped with roof
anchors.
“4. Because of the proximity of electrical lines on at least
two sides of the building (East & South) the building may not be
cleaned using ground-based equipment.
“5. There is no safe method of cleaning that building that
we have been made aware of[.] [T]herefore[,] as authorized by
Labor Code Section 7331[3] I . . . gave notice that the window
cleaning on the building referenced is suspended. Windows
cannot be cleaned on any side of the building until required
equipment or procedures are in place. . . . [¶] . . . [¶]

3 Labor Code section 7331 provides: “The division may make
and enforce such safety orders and rules as it considers necessary
and proper to carry into effect the purposes and provisions of this
chapter. [¶] The division shall give notice to the owner or person
entitled to possession of any building that is existing in violation
of this chapter or of any rules issued under this chapter. Failure
of the person so notified to comply with this chapter and rules
issued under it, within 15 days, shall be authority for the division
to proceed against such person as authorized in this chapter.”
7
“7. [T]he building must have an OPOS [Operating
Procedures Outline Sheet] when using a CDA [controlled descent
apparatus] to clean windows.
“8. The building owner did not provide a letter of
assurance for approved anchor points to the window cleaning
company and the building did not have approved anchor points.”
Plaintiffs also submitted the declaration of Brad Avrit, a
civil engineer and safety expert. Avrit’s declaration stated, in
pertinent part:
“8. Pursuant to Title 8 of the California Code of
Regulations Section 3282(a): ‘Windows shall not be cleaned from
the outside or inside unless means are provided to enable such
work to be done in a safe manner as provided by these orders.’
“9. Section 3282 applies to building owners as well as
companies who provide window washing services. (See 8 CCR
§ 3282(p)(1)(A).)
“10. As part of making the building safe for window
washers to wash the windows of a building, the building owner
has a statutory duty to install approved anchors on the building
for window washers to hook their gear. (See 8 CCR § 3283.)
“11. Anchor points are tools/equipment affixed to buildings
which window washers use to attach their equipment to
descen[d] the side of a building. Anchor points are considered
safety devices for window washers, as they are used to connect
the gear, like ropes and cables to the building.
“12. Window washers do not provide their own anchor
points.
“13. Building owners in the State of California have a duty
to provide approved anchor points.
8
“14. On the date that Mr. Franco fell to his death, June 20,
2011, Defendant [TCI]’s building . . . did not have approved
anchor points.
“15. California Code of Regulations Section 3282(p)(1)(A)
states in relevant part: ‘Building owners shall provide the
employer written assurance, before use, that all their building’s
safety devices and equipment meet the provisions of these orders.
The written assurance shall consider, but not be limited to:
window anchors and fittings. . . .’ . . . [¶] . . . [¶]
“32. The proximity of the powerlines on the southern side
of the building made it unsafe to wash the windows on the
southern side of the building from the ground.
“33. The only other option for cleaning the windows above
the first floor would be to rappel off the side of the building.”
IV.
Trial Court’s Grant of Summary Judgment
The trial court granted summary judgment for TCI on
January 15, 2016, and judgment was entered on March 4, 2016.
The court found that TCI met its burden as moving party to show
that it hired CBS to clean the building’s windows and did not
either retain control over the window cleaning or affirmatively
contribute to decedent’s fall. The court found that plaintiffs
attempted to demonstrate a triable issue of material fact by
arguing that TCI provided defective equipment in connection
with the fall; TCI retained control over the roof from which
decedent fell; and TCI breached nondelegable duties in
connection with the fall. The trial court rejected each of these
theories, concluding that, as a matter of law, roof anchors were
not “equipment;” restricting roof access did not constitute
retained control over a window-washing job; and TCI’s duty to
9
provide a safe workplace for its contractor’s employees was
delegable.
Plaintiffs timely appealed from the judgment.
STANDARD OF REVIEW
“A trial court properly grants summary judgment when
there are no triable issues of material fact and the moving party
is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c).) ‘The purpose of the law of summary judgment
is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.’
[Citation.]
“A defendant who moves for summary judgment bears the
initial burden to show the action has no merit—that is, ‘one or
more elements of the cause of action, even if not separately
pleaded, cannot be established, or that there is a complete
defense to that cause of action.’ (Code Civ. Proc., § 437c,
subds. (a), (p)(2).) Once the defendant meets this initial burden
of production, the burden shifts to the plaintiff to demonstrate
the existence of a triable issue of material fact. [Citation.] ‘From
commencement to conclusion, the moving party defendant bears
the burden of persuasion that there is no triable issue of material
fact and that the defendant is entitled to judgment as a matter of
law.’ [Citation.] We review the trial court’s ruling on a summary
judgment motion de novo, liberally construing the evidence in
favor of the party opposing the motion and resolving all doubts
about the evidence in favor of the opponent. [Citation.] We
consider all of the evidence the parties offered in connection with
the motion, except that which the court properly excluded.
10
[Citation.]” (Grotheer v. Escape Adventures, Inc. (2017)
14 Cal.App.5th 1283, 1292–1293.)
DISCUSSION
I.
Background
At common law, a person who hired an independent
contractor to perform a task generally was not liable to third
parties for injuries caused by the independent contractor’s
negligence. Central to this rule of nonliability “ ‘was the
recognition that a person who hired an independent contractor
had “ ‘no right of control as to the mode of doing the work
contracted for.’ ” ’ ” (SeaBright Ins. Co. v. US Airways, Inc. (2011)
52 Cal.4th 590, 598 (SeaBright).)
One exception to the common law rule that a hirer is not
liable for the torts of an independent contractor is the doctrine of
peculiar risk. Under this doctrine, “a person who hires an
independent contractor to perform work that is inherently
dangerous can be held liable for tort damages when the
contractor’s negligent performance of the work causes injuries to
others. By imposing such liability without fault on the person
who hires the independent contractor, the doctrine seeks to
ensure that injuries caused by inherently dangerous work will be
compensated, that the person for whose benefit the contracted
work is done bears responsibility for any risks of injury to others,
and that adequate safeguards are taken to prevent such injuries.”
(Privette, supra, 5 Cal.4th at p. 691.) The doctrine of peculiar risk
thus represents a limitation on the common law rule and a
corresponding expansion of hirer vicarious liability.
In its 1993 decision in Privette, supra, 5 Cal.4th 689, the
California Supreme Court held that the peculiar risk doctrine did
11
not apply to injured employees of independent contractors.
Privette concerned a roofing contractor’s employee who was
injured when he fell off a ladder and was burned by hot tar. The
employee sued the owner of the home he had been roofing,
contending that the homeowner was liable for his injuries under
the doctrine of peculiar risk. (Id. at pp. 692–693.) The Supreme
Court held that while the homeowner would be liable to an
“innocent bystander” (id. at p. 701) injured by the independent
contractor’s negligence, he was not liable to the independent
contractor’s employee. The court explained: “[T]he peculiar risk
doctrine seeks to ensure that injuries caused by contracted work
will not go uncompensated, that the risk of loss for such injuries
is spread to the person who contracted for and thus primarily
benefited from the contracted work, and that adequate safety
measures are taken to prevent injuries resulting from such work.
[Citation.] But in the case of on-the-job injury to an employee of
an independent contractor, the workers’ compensation system of
recovery regardless of fault achieves the identical purposes that
underlie recovery under the doctrine of peculiar risk. It ensures
compensation for injury by providing swift and sure
compensation to employees for any workplace injury; it spreads
the risk created by the performance of dangerous work to those
who contract for and thus benefit from such work, by including
the cost of workers’ compensation insurance in the price for the
contracted work; and it encourages industrial safety.” (Ibid.)
Thus, the court concluded, “when considered in light of the
various goals that the workers’ compensation statutes seek to
achieve, [the conclusion] that peculiar risk liability should extend
to the employees of the independent contractor, does not
withstand scrutiny.” (Id. at pp. 701–702.)
12
In subsequent cases, the Supreme Court expanded the
Privette doctrine to hold that a hirer could not be held vicariously
liable to an independent contractor’s employees under a variety of
tort theories. (E.g., Toland v. Sunland Housing Group, Inc.
(1998) 18 Cal.4th 253 [hirer of an independent contractor not
liable to contractor’s employee for failing to specify that the
contractor should take special precautions to avert a risk];
Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 [hirer of an
independent contractor not liable to contractor’s employee for
negligent hiring]; Tverberg v. Fillner Construction, Inc. (2010)
49 Cal.4th 518, 522 (Tverberg) [“Having assumed responsibility
for workplace safety, an independent contractor may not hold a
hiring party vicariously liable for injuries resulting from the
contractor’s own failure to effectively guard against risks
inherent in the contracted work.”].)
In the present case, it is undisputed that under Privette
and its progeny, TCI is not vicariously liable to plaintiffs for the
negligence of CBS or its employees. Plaintiffs urge, however,
that Privette does not bar their direct liability claims against TCI
under the doctrines of (1) nondelegable duties, and (2) negligent
exercise of retained control. We consider these issues below.
II.
Breach of Nondelegable Duties
The nondelegable duties doctrine “ ‘prevents a party that
owes a duty to others from evading responsibility by claiming to
have delegated that duty to an independent contractor hired to do
the necessary work.’ [Citation.]” (Vargas v. FMI, Inc. (2015)
233 Cal.App.4th 638, 649.) In the present case, plaintiffs contend
that as a building owner, TCI had a statutory duty pursuant to
Cal-OSHA and other regulations to install roof anchors to which
13
window washers could attach their gear. They further contend
this statutory duty was nondelegable, and its breach gave rise to
liability not barred by the Privette doctrine.
For the reasons that follow, we conclude that under
SeaBright, supra, 52 Cal.4th 590, TCI’s tort law duty to decedent
to provide a safe workplace was delegated to CBS as a matter of
law, and thus TCI is not liable to plaintiffs for damages caused by
TCI’s failure to install statutorily-required roof anchors.
A. SeaBright Ins. Co. v. US Airways, Inc.
SeaBright addressed the application of Privette to a
nondelegable duty claim. In that case, an employee of Aubry Co.,
an independent contractor, was injured while repairing a luggage
conveyor controlled by US Airways, allegedly because the
conveyor lacked safety guards required by the California
Occupational Safety and Health Act (Cal–OSHA) (Lab. Code,
§ 6300 et seq.). Aubry’s insurer paid workers’ compensation
benefits to the injured employee and then sued US Airways,
contending that the airline was responsible for the employee’s
injuries under the nondelegable duty doctrine because the duty to
provide safety guards derived from a “ ‘statute or by
administrative regulation.’ ” (SeaBright, supra, 52 Cal.4th at
pp. 594, 596.)
The trial court granted summary judgment for US Airways;
the Court of Appeal reversed, concluding that US Airways’s duty
under Cal–OSHA to ensure that the conveyor had safety guards
was nondelegable. (SeaBright, supra, 52 Cal.4th at pp. 594–595.)
The Supreme Court then granted review to consider the following
question: “[W]hether the Privette rule applies when the party
that hired the contractor (the hirer) failed to comply with
workplace safety requirements concerning the precise subject
14
matter of the contract, and the injury is alleged to have occurred
as a consequence of that failure.” (Id. at p. 594.)
The Supreme Court held that the Privette rule applied to
the case before it, and therefore US Airways was not liable to the
injured employee or, derivatively, to the workers’ compensation
insurer. The court explained that by hiring an independent
contractor, “the hirer implicitly delegates to the contractor any
tort law duty it owes to the contractor’s employees to ensure the
safety of the specific workplace that is the subject of the contract.
That implicit delegation includes any tort law duty the hirer owes
to the contractor’s employees to comply with applicable statutory
or regulatory safety requirements.” (SeaBright, supra, 52 Cal.4th
at p. 594.) In the case before it, therefore, “US Airways
presumptively delegated to Aubry any tort law duty of care the
airline had under Cal-OSHA and its regulations to ensure
workplace safety for the benefit of Aubry employees. The
delegation—which . . . is implied as an incident of an independent
contractor’s hiring—included a duty to identify the absence of the
safety guards required by Cal-OSHA regulations and to take
reasonable steps to address that hazard.” (Id. at p. 601.)
In reaching this conclusion, the high court rejected the
distinction drawn by the Court of Appeal between the safety
requirements that arose from the work performed by the
independent contractor, and that which predated the contractor’s
hiring and applied to the hirer by virtue of its role as property
owner. The court explained: “In the view of the Court of Appeal,
the latter requirements are nondelegable. Conversely, tort law
duties that ‘only exist because construction or other work is being
performed’ can be delegated to the contractor hired to do the
work. We acknowledge the distinction, but for the reasons given
15
below, we conclude that the Court of Appeal did not apply the
distinction correctly.
“Before hiring independent contractor Aubry, defendant US
Airways owed its own employees a duty to provide a safe
workplace. We do not suggest that defendant could delegate that
preexisting duty to Aubry (such that defendant could avoid
liability if the conveyor had injured defendant’s own employee).
But . . . the issue here is whether defendant US Airways
implicitly delegated to contractor Aubry the tort law duty, if any,
that it had to ensure workplace safety for Aubry’s employees. The
latter duty did not predate defendant’s contract with Aubry;
rather, it arose out of the contract. Any tort law duty
US Airways owed to Aubry’s employees only existed because of
the work (maintenance and repair of the conveyor) that Aubry
was performing for the airline, and therefore it did not fall within
the nondelegable duties doctrine.” (SeaBright, supra, 52 Cal.4th
at pp. 602–603.)
The court further noted that the policy favoring delegation
in the case before it was bolstered by the same factors it
considered persuasive in Privette. It explained: “Privette noted
that the cost of workers’ compensation insurance for an
independent contractor’s employees is presumably included in
the contract price the hirer pays to the contractor, and therefore
the hirer indirectly pays for that insurance. (Privette, at p. 699.)
Privette further noted that workers’ compensation guarantees
compensation for injured workers, ‘spreads the risk created by
the performance of dangerous work to those who . . . benefit from
such work,’ and ‘encourages industrial safety.’ (Id. at p. 701.)
Also, in light of the limitation that the workers’ compensation law
places on the independent contractor’s liability (shielding the
16
latter from tort liability), it would be unfair to permit the injured
employee to obtain full tort damages from the hirer of the
independent contractor—damages that would be unavailable to
employees who did not happen to work for a hired contractor.
This inequity would be even greater when, as is true here, the
independent contractor had sole control over the means of
performing the work. [Citation.] In sum, we see no reason to
limit our holding in Privette simply because the tort law duty, if
any, that the hirer owes happens to be one based on a statute or
regulation.” (SeaBright, supra, 52 Cal.4th at p. 603.)
B. SeaBright Is Dispositive of Plaintiffs’ Nondelegable
Duty Claim
In the present case, plaintiffs contend that TCI had a
statutory duty as a building owner to install structural roof
anchors to which window washers could attach their controlled
descent equipment. They identify several sources for the
asserted duty to provide building anchors, including California
Code of Regulations, title 8, sections 3281 to 3289; Health and
Safety Code section 17920.3; Labor Code sections 7326 to 7329;
Los Angeles Municipal Code section 91.8104; and International
Window Cleaning Association I-14.1 guidelines, section 3.9.
For purposes of this appeal, we assume that these sections
required TCI to equip its building with structural roof anchors,
and that TCI failed to do so. We nonetheless do not agree that
there were triable issues as to whether TCI’s breach of its
statutory duties gave rise to liability not barred by the Privette
doctrine. To the contrary, SeaBright compels the conclusion that
when TCI hired CBS, an independent contractor, to provide
window washing services, it delegated to CBS its duty to provide
a safe workplace for CBS’s employees. Accordingly, TCI’s alleged
17
breach of a statutory duty to provide safety anchors did not give
rise to rise to liability to decedent or his survivors.
Plaintiffs urge that the present case is distinguishable from
SeaBright because their claims “[are] not exclusively based upon
OSHA violations.” We are not persuaded that TCI had a
statutory duty, independent of the duty imposed by OSHA
regulations, to provide roof anchors—but even if TCI had such a
duty, we do not agree that SeaBright’s holding is properly limited
to Cal-OSHA. SeaBright holds that by hiring an independent
contractor, a hirer implicitly delegates to the contractor the tort
law duty the hirer owes to the contractor’s employees “to comply
with applicable statutory or regulatory safety requirements” to
ensure workplace safety—including a duty to “identify the
absence of safety guards” and “take reasonable steps to address
that hazard.” (SeaBright, supra, 52 Cal.4th at pp. 594, 601,
italics added.)4 Although the specific regulations at issue in
SeaBright arose under Cal-OSHA, nothing in the court’s analysis
or reasoning suggests its holding is limited to Cal-OSHA
“statutory or regulatory safety requirements.” Rather, its
expansive language indicates that the high court intended its
holding to extend to all statutory or regulatory safety
requirements. Accordingly, we conclude that under SeaBright,
TCI implicitly delegated to CBS its duties under Cal-OSHA and
non-Cal-OSHA sources to provide a safe workplace for decedent.

4 SeaBright suggests that the result might be different in a
situation “in which the relevant statutes or regulations indicate
an intent to limit the application of Privette . . . or preclude
delegation of the tort law duty, if any, that the hirer owes to the
contractor’s employees.” (SeaBright, supra, 52 Cal.4th at p. 594,
fn. 1.) No such intent is indicated in the present case.
18
Thus, the trial court properly granted TCI’s motion for
summary judgment on the breach of nondelegable duties theory
of recovery.
III.
Negligent Exercise of Retained Control
Plaintiffs assert in the alternative that there were triable
issues of fact as to whether TCI affirmatively contributed to
decedent’s death by negligently exercising retained control over
decedent’s worksite. In support, they rely on McKown, supra,
27 Cal.4th 219, which they suggest is “remarkably similar to” the
present case. For the reasons that follow, we do not agree.
A. McKown v. Wal-Mart Stores, Inc.
Plaintiff McKown was an employee of an independent
contractor hired by Wal-Mart to install speakers in the ceilings of
Wal-Mart stores. Wal-Mart requested that the contractor use
Wal-Mart’s forklifts whenever possible and furnished the plaintiff
a forklift for use. (McKown, supra, 27 Cal.4th at p. 223.)
However, the forklift Wal-Mart provided to McKown was
defective; specifically, the forklift’s platform was not chained to
the forklift as safety standards required. As a result, the
platform disengaged and McKown fell 12 to 15 feet, suffering
injury. (Ibid.)
A jury found that Wal-Mart was negligent in providing the
contractor with unsafe equipment and allocated 23 percent of the
responsibility for the accident to Wal-Mart. Both the Court of
Appeal and the Supreme Court affirmed. (McKown, supra,
27 Cal.4th 219.)
The Supreme Court explained that in Hooker v.
Department of Transportation (2002) 27 Cal.4th 198, it had held
“that a hirer of an independent contractor is not liable to an
19
employee of the contractor merely because the hirer retained
control over safety conditions at a worksite, but that a hirer is
liable to an employee of a contractor insofar as a hirer’s exercise
of retained control affirmatively contributed to the employee’s
injuries.” (McKown, supra, 27 Cal.4th at p. 225, italics added.)
For the same reason, “when a hirer of an independent contractor,
by negligently furnishing unsafe equipment to the contractor,
affirmatively contributes to the injury of an employee of the
contractor, the hirer should be liable to the employee for the
consequences of the hirer’s own negligence.” (Ibid.) In the case
before it, Wal-Mart’s provision of an unsafe forklift to McKown
affirmatively contributed to the plaintiff’s injuries, and thus WalMart
was held liable for its negligence. (Id. at p. 226.)
B. McKown Does Not Govern the Present Case
Plaintiffs contend that in opposition to TCI’s motion for
summary judgment, they provided evidence through the
declarations of Gupta and Avrit that anchor points were
“equipment” within the meaning of McKown, and therefore a jury
should have been permitted to decide whether TCI “negligently
provided unsafe equipment that contributed to [decedent’s]
injuries.” We do not agree that plaintiff’s summary judgment
evidence raised a triable issue of fact, because the relevant issue
under McKown and subsequent cases is not whether “equipment”
caused an employee’s injury, but rather whether the hirer
retained control over the worksite “in a manner that affirmatively
contributed to the injury.” (Tverberg, supra, 202 Cal.App.4th at
p. 1446.)
As one Court of Appeal has explained, an affirmative
contribution to injury occurs “[w]hen the [hirer] directs that work
be done by use of a particular mode or otherwise interferes with
20
the means and methods of accomplishing the work . . . . (Hooker,
supra, 27 Cal.4th at p. 215; Millard v. Biosources, Inc. (2007)
156 Cal.App.4th 1338, 1348.)” (Tverberg, supra, 202 Cal.App.4th
at p. 1446.) By contrast, “passively permitting an unsafe
condition to occur rather than directing it to occur does not
constitute affirmative contribution. (Hooker, supra, 27 Cal.4th at
pp. 214–215; Ruiz v. Herman Weissker, Inc. (2005)
130 Cal.App.4th 52, 65–67.)” (Tverberg, supra, 202 Cal.App.4th
at p. 1446, italics added.)
In the present case, while TCI arguably “provided” the
inadequate anchor points to CBS, it did not suggest or request
that CBS use the anchor points to wash the building’s windows.
To the contrary, the undisputed evidence before the trial court
was that “[CBS] and its employees made all decisions as to how
the job was to be done.” Further, it was undisputed that when
CBS decided on June 20, 2011, to change the method by which
the building’s windows would be washed—that is, to have CBS
employees rappel off the roof using structural anchor points and
a tie-back anchor system, rather than clean the windows from the
ground using water-fed poles—it did so without direction by,
consultation with, or notice to TCI. Accordingly, there is no
evidence that TCI directed how the window washing should be
performed or otherwise interfered with the means or methods of
accomplishing the work.
Although plaintiffs concede that CBS had exclusive control
over how the window washing would be done, they urge that TCI
nonetheless is liable because it affirmatively contributed to
decedent’s injuries “not [by] active conduct but . . . in the form of
an omission to act.” Although it is undeniable that TCI’s failure
to equip its building with roof anchors contributed to decedent’s
21
death, McKown does not support plaintiffs’ suggestion that a
passive omission of this type is actionable. To the contrary,
McKown explained that Wal-Mart was liable because it requested
that the contractor use its forklift, and “Wal-Mart, the world’s
largest retailer, was a customer the contractor was presumably
loath to displease.” (McKown, supra, 27 Cal.4th at p. 225.)
Subsequent Supreme Court decisions, including the court’s
decision in SeaBright, have repeatedly rejected the suggestion
that the passive provision of an unsafe workplace is actionable.
(E.g., SeaBright, supra, 52 Cal.4th 590 [hirer not liable for injury
to a contractor’s employee caused by the absence of statutorily
mandated safety equipment]; Hooker, supra, 27 Cal.4th 198, 214–
215 [“[Hirer] Caltrans permitted construction vehicles . . . to use
the overpass while the crane was being operated [by the
decedent], and because the overpass was narrow, the [decedent]
was required to retract the outriggers in order to let the traffic
pass . . . . [¶] We are not persuaded that Caltrans, by permitting
traffic to use the overpass while the crane was being operated,
affirmatively contributed to [decedent’s] death.”].) Accordingly,
the failure to provide safety equipment does not constitute an
“affirmative contribution” to an injury within the meaning of
McKown.

Outcome: The judgment is affirmed. TCI is awarded its appellate costs.

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