Can the General Contractor Be Liable?

Most construction sites have layers: an owner hires a general contractor, the general contractor hires subcontractors, and the subcontractors employ the crews. When a crew member is hurt, a central question in a construction site injury claim is whether anyone above the worker's own employer can be held responsible. Workers' compensation from the employer is usually available, and it is generally the only remedy against that employer (Labor Code 3602). A claim against the general contractor or owner is a separate path, and California law narrows it.

The narrowing rule comes from the California Supreme Court's decision in Privette v. Superior Court. In its notes to CACI 3713, the Judicial Council summarizes that line of decisions as the basic rule that a hirer is "typically not liable" for injuries to a contractor's workers on the job, because the hirer presumptively delegates to the contractor how the work is done. This guide explains the exceptions that remain.

How does a claim against a general contractor or owner work, step by step?

Start the workers' comp claim with your employer. That claim runs regardless of fault. Our guide on the first week after a construction injury lists the notices and forms.
Map the chain of hiring. A decision quoted under CACI 1009B explains that delegation of safety can be direct, when the hirer contracts with your employer, or indirect, when it hires another contractor who then subcontracts the work, and that the Privette rule protects every entity in that chain of delegation.
Expect the presumption. Another decision quoted under CACI 1009B describes the Privette rule as a presumption that the hirer delegated its duty to provide a safe workplace, one that affects the burden of producing evidence. In practice the injured worker has to come forward with facts that fit an exception.
Test the facts against the three exceptions. The Judicial Council's jury instructions set out three: a concealed hazard the hirer knew about (CACI 1009A), control the hirer kept and actually used in a way that affirmatively contributed to the injury (CACI 1009B), and unsafe equipment the hirer provided (CACI 1009D).
Gather the paper and the witnesses. Contracts, site safety plans, meeting notes, text messages from the superintendent, and coworkers who heard who gave instructions are the usual proof of control.
Bring the claim on time. A personal injury lawsuit generally must be filed within two years (Code of Civil Procedure 335.1). In Sonoma County, that lawsuit is filed in the superior court; see what to expect at Sonoma County Superior Court.
Account for the comp insurer. An employer that paid compensation may claim against the same third party and is reimbursed from the recovery under the statute's order (Labor Code 3852 and 3856).

Which exceptions can make a general contractor or owner responsible?

Exception	What the worker must prove	What is not enough on its own	Instruction
Concealed hazard	The defendant owned, leased, occupied or controlled the property; knew or should have known of a preexisting unsafe concealed condition; the worker's employer could not have found it by a reasonable inspection; and the defendant failed to warn the employer	A hazard the subcontractor could have found by inspecting the worksite or the means of getting to it	CACI 1009A
Retained control	The defendant retained some control over how the contracted work was done, actually exercised that control, and its negligent exercise of control affirmatively contributed to the harm	Merely having authority over site safety; passively allowing an unsafe condition; not supplying safety equipment it never agreed to provide	CACI 1009B
Unsafe equipment	The defendant owned, leased, occupied or controlled the property and negligently provided unsafe equipment that contributed to the injuries, and its conduct was a substantial factor in the harm	Equipment the subcontractor itself supplied	CACI 1009D

What does "affirmatively contributed" mean on a real job site?

This phrase decides many retained control claims, and the Judicial Council's notes to CACI 1009B quote the decisions that shape it. Retaining control over safety is not enough on its own; the hirer must have exercised that control in a way that affirmatively contributed to the injury. A decision quoted there says an affirmative contribution occurs when the hirer directs that the work be done a particular way or otherwise interferes with how the work is accomplished.

The contribution does not always have to be an act. The notes quote the Supreme Court's example that a hirer that promises to undertake a particular safety measure, and then negligently fails to do it, may be liable for the resulting injury. A later decision quoted there repeats that a hirer may be liable for failing to undertake a promised safety measure.

The other side of the line is just as clear in the notes. A hirer's failure to correct an unsafe condition, by itself, does not establish an affirmative contribution. One decision held that an owner's failure to equip its building with roof anchors was a passive omission, not an affirmative contribution. Another explains that when the subcontractor knows of a hazard, protecting its own workers from it is the subcontractor's responsibility. And the Supreme Court's Sandoval decision, quoted under the same instruction, says that where the contractor's own conduct is the immediate cause of the injury, the hirer must have in some way induced that conduct, not merely failed to prevent it.

Do Cal/OSHA rules make the general contractor responsible?

Not by themselves. On a multiemployer worksite, Cal/OSHA may cite the employer whose workers were exposed, the employer that created the hazard, the employer responsible for safety on the site by contract or practice (the controlling employer), and the employer responsible for correcting the hazard (Labor Code 6400(b)). A general contractor can be cited as the controlling employer. But a citation, or the absence of one, is not admissible in a personal injury action except between a worker and the worker's own employer (Labor Code 6304.5). Our guide on whether a Cal/OSHA citation helps an injury case covers that rule in detail.

The safety orders themselves can still matter. The Judicial Council's notes to CACI 418 quote the Supreme Court's Elsner decision holding that Cal/OSHA provisions may be admitted to establish a standard of care in negligence actions, including third-party actions. At the same time, the notes to CACI 3713 quote a later Supreme Court decision saying that even where an unsafe condition exists because a landowner did not comply with specific statutory and regulatory duties, the landowner is not liable because the contractor is responsible for its own workers' safety. Safety orders help show what careful conduct required once an exception applies; the notes do not treat a violation alone as an exception.

What about the other companies on the site?

The Privette presumption is about hirers. A different subcontractor that did not hire your employer, a delivery driver, or an equipment rental company is not in your chain of hiring, and its conduct is judged under the general rule that everyone is responsible for injuries caused by a lack of ordinary care in managing their property or their own actions (Civil Code 1714). The Labor Code preserves claims against any person other than the employer (Labor Code 3852).

If a machine or tool failed, a product claim against the maker or seller may be available; see a defective machine injury at work. People who are not workers at all, such as pedestrians hurt by falling debris, are in a different position again: read about injuries to people walking or driving past a construction site.

What changes the answer?

The owner is a public agency. A public entity is liable for its independent contractor's wrongful act to the same extent a private person would be (Government Code 815.4), and a decision quoted under CACI 1009B applies the retained control doctrine to public entities on that basis. A written claim to the agency is generally due within six months (Government Code 911.2).

The hazard was hidden and the owner knew. CACI 1009A applies. The Supreme Court's Kinsman decision, quoted under that instruction, contrasts a roofer who falls through the roof he was hired to repair, who generally cannot sue the hirer, with a roofer whose ladder falls because an unrelated wall collapses, who may be able to. Falls are covered in our guide on who is responsible for a scaffold, ladder or roof fall.

The general contractor supplied the scaffold, lift or ladder. CACI 1009D applies, and the decisions quoted under it say that a hirer that negligently furnishes unsafe equipment is liable for its own negligence, not the contractor's.

The hirer promised a safety measure. A broken promise to provide a guardrail, cover or barricade can be the affirmative contribution CACI 1009B requires.

Your employer had no workers' comp insurance. You may sue the employer directly, with a presumption of negligence in your favor (Labor Code 3706 and 3708).

The worker died. The same rules shape a family's claim; see when a family member dies at work.

What could this look like? An example

For example, imagine a drywall installer employed by a subcontractor on a commercial building in Santa Rosa. The general contractor's superintendent tells the drywall crew to take down a section of guardrail on the second floor so a pallet of board can be lifted in, and says his own crew will put the rail back by noon. No one does. That afternoon the installer steps backward through the open edge and falls.

The installer's workers' comp claim against his employer goes forward. A claim against the general contractor would rest on CACI 1009B: the superintendent did not just have authority over safety, he directed how the work was done and promised a safety measure that was not carried out. If instead the drywall subcontractor had removed the rail on its own and the general contractor simply failed to notice, the notes to CACI 1009B suggest that failure to correct the condition would not be enough. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do people make with these claims?

Assuming the general contractor is automatically responsible because it ran the site.
Assuming the opposite, that workers' comp ends every claim, and never asking who gave the instructions.
Relying on a Cal/OSHA citation as proof against the general contractor in an injury case.
Losing track of the superintendent's texts, emails and promises made at safety meetings.
Overlooking the six-month claim deadline when the owner is a city, county, district or the State.

What should I do this week?

Write down who owned the property, who the general contractor was, and who employed you.
Note every instruction you received that day, who gave it, and who heard it.
Save texts, emails, site safety plans and any sign-in or meeting sheets you have.
Write down who supplied the equipment involved and keep photographs of it.
Keep the workers' comp claim moving with your employer.
Check the lawsuit and claim deadlines in our guide to California personal injury deadlines.

Frequently asked questions

Can I bring a claim against the general contractor while I receive workers' comp?

Yes. A workers' comp claim does not affect a claim against any person other than the employer (Labor Code 3852). The comp insurer is repaid from that recovery; our guide on what comes out of a personal injury settlement explains the deductions.

The general contractor had a safety program and ran safety meetings. Is that control?

Not by itself. The Supreme Court's Hooker decision, quoted under CACI 1009B, holds that a hirer is not liable merely because it retained control over safety conditions; its exercise of that control must have affirmatively contributed to the injury.

Does the Privette rule protect a homeowner who hired a contractor?

The rule applies to hirers generally, including landowners. A homeowner may still be responsible under CACI 1009A for a concealed hazard it knew or should have known about and did not warn the contractor about.

What if the general contractor was my actual employer?

Then workers' compensation is generally your only remedy against it (Labor Code 3602), and any claim beyond comp would be against someone else, such as an equipment maker or another company on site.

Does it matter that the hazard was obvious?

It can. Decisions quoted under CACI 1009A and 1009B treat hazards the subcontractor knew about or could find by reasonable inspection as the subcontractor's responsibility.

If you were hurt while working for a subcontractor and want to know whether the general contractor or owner shares responsibility, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation.

Can a general contractor or owner be responsible when a subcontractor's worker is hurt?