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Two questions in every construction injury: what does the comp claim cover, and who else was on that site. Both are answered below, along with the licensing rules that decide who your employer actually is, and the five things to preserve this week.
In thirty seconds
- Privette generally blocks a suit against the general contractor or owner — and any honest page has to say so. But the exceptions are real: the hirer directed the work in a way that contributed to the injury (Hooker), supplied unsafe equipment (McKown), or, as landowner, failed to warn of a hidden hazard the contractor could not reasonably have found (Kinsman). Each turns on evidence about control that disappears fast.
- Privette does not touch equipment manufacturers, rental companies, other subcontractors, drivers, or designers. A different sub whose negligence hurt you is an ordinary third-party defendant — the most commonly missed one on a jobsite.
- § 2750.5: an unlicensed person doing licensed work is not an independent contractor. They are an employee — and so is their crew — frequently of the licensed general or owner who hired them. The most valuable fact on this page for a cash-paid crew member.
The Privette problem, and the three ways through it
Under Privette v. Superior Court (1993) 5 Cal.4th 689, a property owner or general contractor who hires an independent contractor is generally not liable for injuries to that contractor’s employees. The law presumes responsibility for jobsite safety was delegated along with the work. That doctrine ends a great many construction cases, and any honest page has to say so. But it has real exceptions.
WHICH MEANS
The case is made or lost on evidence about control — daily reports, safety meeting minutes, RFIs, schedule directives, the subcontract itself, and testimony about who told whom to do what. That evidence disappears fast, and it is why a construction case should be investigated in weeks rather than after the comp claim resolves.
RETAINED CONTROL · HOOKER v. DEPARTMENT OF TRANSPORTATION (2002)
A hirer is liable where it retained and exercised control over the contractor’s work in a manner that affirmatively contributed to the injury. Failing to prevent a hazard is not enough. Directing how the work is done, controlling the schedule in a way that forced an unsafe method, or ordering the crew into a condition the GC created — those are affirmative contribution. In Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256 the Supreme Court held that the hirer must actually involve itself in the work, and must have induced the unsafe conduct rather than merely failed to prevent it. The bar is real.
CONCEALED HAZARD · KINSMAN v. UNOCAL CORP. (2005)
A landowner must warn of a latent hazard on the premises not reasonably detectable by the contractor. Buried utilities, contamination, a structurally compromised element, an energized line believed dead. The duty is discharged if the contractor knew or should reasonably have discovered it — and where the contractor knew of the hazard, the landowner generally owes no duty even if the contractor could not make it safe (Gonzalez v. Mathis (2021) 12 Cal.5th 29).
UNSAFE EQUIPMENT · McKOWN v. WAL-MART STORES (2002)
A hirer that supplied unsafe equipment is liable where that equipment affirmatively contributed to the injury. Two things that sound like exceptions are not: hiring a careless contractor (Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235), and a safety regulation the hirer handed to the contractor along with the work (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590).
And the defendants Privette does not touch
| DEFENDANT | WHY PRIVETTE DOES NOT APPLY |
|---|---|
| Equipment and product manufacturers | Scaffolding, ladders, lifts, nail guns, saws, cranes, hoists, trench boxes, fall arrest systems. A products case is unaffected by Privette |
| Equipment rental and maintenance companies | Not the hirer |
| Other subcontractors on the site | Privette protects the hirer. A different sub whose negligence hurt you is an ordinary third-party defendant — the most commonly missed defendant on a jobsite |
| Drivers and delivery vehicles | Ordinary negligence |
| Engineers and designers | Where the design itself created the hazard |
The licensing rules that decide who your employer is
A worker hired by an unlicensed sub is frequently deemed an employee of the licensed general contractor or the property owner who hired that sub — which is very often a solvent, insured defendant standing behind an insolvent one. This is the single most valuable fact on this page for a day laborer or a cash-paid crew member, and it is almost never explained. One limit: on work for a private home, the homeowner is not liable for workers’ compensation where the work for that homeowner in the 90 days before the injury was, or was contracted to be, under 52 hours or for $100 or less.
LABOR CODE § 2750.5
Any person performing work for which a contractor’s license is required “shall hold a valid contractors’ license as a condition of having independent contractor status.” So an unlicensed person doing licensed work is not an independent contractor. They are an employee — of whoever hired them. And so is their crew.
IF NOBODY CARRIED INSURANCE
The Uninsured Employers Benefits Trust FundUEBTF Uninsured Employers Benefits Trust Fund. Pays benefits where the employer was illegally uninsured. pays benefits, and the law permits a civil action where § 3708 presumes negligence and strips the contributory negligence, assumption of risk, and fellow-servant defenses.
CASH CHANGES NOTHING
The law presumes anyone rendering service for another is an employee. And immigration status does not affect eligibility for California workers’ compensation.
What the work does
MECHANISM · WHAT IT PRODUCES
Falls
The leading cause of construction fatalities. Roofs, ladders, scaffolds, leading edges, floor and skylight openings — brain injury, spinal cord injury
Struck-by
Falling material, swinging loads, vehicles and equipment, nail guns
Caught-in and crush
Trench collapse, equipment, unguarded machinery — amputation
Electrocution and arc flash
Thermal burn, blast, hearing damage, and frequently head injury
Silica
Cutting, grinding, and drilling concrete, masonry, and engineered stone. The most consequential current exposure in California construction
Asbestos and lead
Renovation and demolition of older buildings, which is ongoing
Heat
Roofing, paving, and concrete work are the highest-risk trades in the state
Noise
The audiogram configuration usually answers the age argument
Cumulative trauma
Knees from kneeling and stairs, shoulders from overhead work, backs from lifting, hands from vibrating tools. A body that wore out over twenty years is a claim
Preserve this now
- Do not let the equipment be repaired, modified, or scrapped — In a machine, scaffold, or vehicle case, preservation is the difference between a product claim and no product claim.
- Photograph the scene and the condition — Guards, fall protection, shoring, the ladder, the surface.
- Get the Cal/OSHA investigation file — A serious injury or fatality triggers an investigation, and the file contains witness statements taken close in time.
- Identify every company on that site — Names on trucks, on hard hats, on the sign at the gate, on the sign-in sheet.
- Get the daily reports and safety meeting minutes — Before they are archived. That is the retained-control evidence.
Frequently asked questions
Can I sue the general contractor?
Sometimes. The Privette doctrine generally blocks it, but the retained control, unsafe equipment, and concealed hazard exceptions are real, and they turn on evidence about who directed the work and what the hirer supplied.
I was paid in cash by a guy with no license.
Someone doing licensed work without a license is not an independent contractor — and their crew is frequently deemed employees of the licensed contractor or owner who hired them.
Nobody had insurance.
UEBTF pays benefits, and the law permits a civil action against the employer where negligence is presumed.
Does my immigration status matter?
No. California workers’ compensation covers all workers regardless of immigration status.
My back just wore out — there was no accident.
That is a cumulative traumaCT — Cumulative trauma Injury from repeated exposure over time. The largest injury category in California and the least claimed. claim, and the date of injuryDate of injury For a cumulative or occupational disease claim, the law sets it as when you first suffered disability and knew or should have known it was work-related — not when the wear began. Almost every deadline runs off this. is usually much later than people assume.
Sources
Privette v. Superior Court (1993) 5 Cal.4th 689Hooker v. Department of Transportation (2002) 27 Cal.4th 198McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256Gonzalez v. Mathis (2021) 12 Cal.5th 29Labor Code § 2750.5§ 3352(a)(8)§ 3357§ 3706§ 3708§ 5412.
General information about California law, not legal advice about your case.
Reviewed by Jamey Teitell, Partner & Trial Attorney · Last reviewed
Law Offices of Solov & Teitell, APC · (213) 380-9310
Printed from https://www.solovteitell.com/industries/construction-workers/ · Last reviewed