Degala v. John Stewart Company - A163130 - 1/27/2023

In Degala v. John Stewart Company Plaintiff was the employee of a subcontractor at a construction site.  Three assailants made it through the fencing around the building worksite and followed Plaintiff outside of the building and attacked Plaintiff outside of the fence.  Plaintiff sued the general contractor for his injuries, saying they were negligent in not protecting the worksite from roaming criminals.

In general, employees cannot sue their employer for on-the-job injuries; their exclusive remedy is the workers compensation system.  Also, in general, an employee may not sue a company (or landowner) that hired the employer.

There is an exception where the hiring company is directly responsible for the injury and "affirmatively contributes" to the injury.  

In this case, the appellate court held hat the general contractor could be held liable because it took control over site security by maintaining fences at the job site, hiring security guards, installing a camera system, directing workers to stay inside at times, and making changes to security over time.

Basically, because the general contractor exercised control over security and could have done more to prevent the assault, the general contractor is potentially liable for Plaintiff's injuries. 

The opinion (by Hon. Marla J. Miller) was initially unpublished.  It should have remained that way.  The opinion does not distinguish key Supreme Court decisions on this issue and does not explain how the defendants affirmatively contributed to the injury.  

In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, CalTrans retained control over safety conditions at a worksite, but they allowed contractors to engage in an allegedly dangerous practice:  A crane operating on an overpass blocked vehicle traffic.  So, the cane operated would retract outriggers to allow vehicles to pass.  The crane toppled when the operator forgot to re-extend the outriggers before restarting work.  CalTrans knew about the dangerous practice and could have put it to a stop.  The Court held that CalTrans was not liable because it did not "affirmatively contribute" to the practice.

The Court focused on a distinction between allowing a dangerous activity and requiring the dangerous condition.  The Court held CalTrans did not affirmatively contribute even though some of its own vehicles would use the overpass, causing the plaintiff to retract the outriggers.

The facts of Hooker are similar to Degala:  the general contractor had general control over site access safety, and could have taken additional actions to reduce the likelihood of injury, but nothing the general contractor did directly encouraged criminal conduct or prevented the subcontractor from taking additional precautions.  If anything, the facts in Degala are more favorable to the defendant.  In Hooker, CalTrans actively took advantage of the dangerous condition, in Degala, the general contractor was attempting to take reasonable steps to protect the worksite.  In neither case did the defendant affirmatively require the worker to undertake the work they were performing in a dangerous manner.

Degala does not address the recent case of Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256.  Qualcomm hired a subcontractor to perform an inspection of an electrical system.  Qualcomm informed the subcontractor what equipment was shutdown and what parts were powered.  Plaintiff was injured from one of the live circuits.  Even though Qualcomm was in control of whether to turn off power and, in essence, required the contractor to work in the presence of dangerous live circuit, it was sufficient if Qualcomm disclosed the dangers.

The facts here are analogous in that the general contractor clearly informed the subcontractors and employees of the dangers of crime in the neighborhood and there was no evidence the general contractor hid this fact or misrepresented the extent of safety measures in place.  Just like the subcontractor in Qualcomm, Plaintiff and his employer continued to work at the jobsite with the knowledge of the dangers--dangers that the general contractor did not act to increase. 

A hirer can be liable when it directs that certain defective equipment be used by a subcontractor.  I think Plaintiff's best argument would have been that the defendants "supplied" defective "security" to the worksite, and Plaintiff was necessarily required to use defendants' security.  But from the opinion, there is no evidence this is actually the case. 

On this key factual issue, Degala misplaces the burden of production.  Once the moving parties met their initial burden, it was Plaintiff's burden to present evidence that the defendants actively prevented Plaintiff or Plaintiff's employer from taking additional security measures that would have prevented the crime.  For example, Plaintiff might be able to meet that burden by showing defendants prevented subcontractors from hiring their own security or taking other precautions.  But instead, the court reasoned that "there is no evidence that Degala or [his employer] could have made alternative site security arrangements."  Thus, the court improperly put the burden on the defendants.

Absent from the opinion  is consideration that the direct cause of the injury was third party criminal conduct. Unlike the supply of equipment or the condition of the land, third-party criminal conduct not something that the defendants have "affirmatively contributed" to unless they did something that specifically made criminal conduct more inviting.  Nothing in the facts of the decision suggest the motive of the assailants, much less that the defendants did anything to encourage crime.  It is odd that this factor was not considered in the decision.