For workers told that workers' compensation is the end of the road — and for attorneys researching how to defeat a Privette summary judgment through the retained-control exception. This is a case the defense believed it had won on the law. It hadn't.
Some of the hardest injury cases in California are the ones where the defense never really argues the facts — it argues that no matter what happened, the law forbids the claim. Worksite cases against the companies that hired the work are exactly that kind of case, because of a doctrine called Privette. Here is how one of those "barred" cases became a recovery.
What happened
Our client was a skilled welder. He had been brought onto a project to weld a ride, employed by a company that had been retained — through a chain that ran up to the developer — to perform that welding work. While he was welding, a test cart was released on the ride. A man doing precision work with a torch had no warning and no way to get clear. The result was catastrophic. He did what hundreds of injured workers do: he looked for accountability beyond a workers'-compensation check — and ran straight into the wall the defense was waiting behind.
The wall: the Privette doctrine
When a company hires an independent contractor, California law presumes that the hirer has delegated to that contractor the responsibility for the safety of the contractor's own employees. That is the rule of Privette v. Superior Court (1993) 5 Cal.4th 689 and the line of cases that followed it. The practical effect is severe: the injured worker's remedy is usually limited to workers' compensation against his own employer, and the deeper-pocketed companies that hired and controlled the project walk away — untouchable, the argument goes, as a matter of law.
That is precisely the argument the defense made here. The ride company, the landowner, and the management company each invoked Privette and moved for summary judgment — asking the court to throw the case out before a jury ever heard a word about the test cart. And when the first effort did not end the case, they came back and did it again. Two motions for summary judgment, both built on the same theory: the law gives this man nothing.
The crack in the wall: negligent exercise of retained control
The Privette presumption is strong, but it is not absolute. Its most important exception is the negligent exercise of retained control. Under Hooker v. Department of Transportation (2002) 27 Cal.4th 198 — refined by the Supreme Court in Sandoval v. Qualcomm Technologies, Inc. (2021) 12 Cal.5th 256 — a hirer that retains control over the manner in which the work is performed, and then negligently exercises that control in a way that affirmatively contributes to the worker's injury, can be held liable despite Privette. The key is that the hirer must do more than fail to act; it must affirmatively contribute to the harm.
That is exactly what the record showed. These defendants did not simply hand a worksite to a contractor and step back. They retained and exercised control over the very operation that set a test cart in motion while a worker was welding in its path. Releasing that cart, under those conditions, was not a passive failure — it was an affirmative act that contributed directly to the injury. On those facts, the retained-control exception was not a stretch; it was the case.
The fight that decided everything: two MSJs
In a Privette case, the motion for summary judgment under Code of Civil Procedure § 437c is the whole war. The defense's plan is to win on the law and never face a jury — and most of these cases die exactly there. We defeated both motions by building the evidentiary record the exception requires: that each hirer retained control over the relevant work, and that its negligent exercise of that control affirmatively contributed to what happened to our client. Twice the court agreed there were triable issues for a jury, not questions to be decided on paper. Surviving summary judgment turned a "barred" case back into a live one.
The result
Having kept the claims alive against the ride company, the landowner, and the management company, we pursued them on the negligent-exercise-of-retained-control theory and obtained a great result for our client. Results depend on the unique facts of each case. Prior results do not guarantee or predict a similar outcome in any future matter.
Why this case matters
If you are an injured worker, do not accept "it's only workers' comp" as the final word. When a company other than your employer controlled the work and its own negligence helped cause your injury, there may be a third-party claim worth far more than a comp file — and the companies counting on Privette are counting on you not knowing that. If you are an attorney, you already know the retained-control exception is narrow, fact-intensive, and litigated to the hilt on summary judgment. These cases reward a record built for Hooker and Sandoval from day one. That is the work we do, and the work we are glad to do alongside referring counsel.
Frequently asked questions
Is workers' comp really my only option after a job injury?
Often it is not. Comp is generally the exclusive remedy against your employer, but a third party who controlled the work and negligently caused your injury may be liable in tort. Whether that claim exists turns on Privette and its exceptions.
What is the Privette doctrine?
The presumption that a hirer delegates worker-safety responsibility to the independent contractor it hires (Privette v. Superior Court (1993) 5 Cal.4th 689), which usually bars a tort claim against the hirer — unless an exception applies.
How is it overcome?
Most often through the retained-control exception (Hooker; Sandoval): the hirer retained control over the work and negligently exercised it in a way that affirmatively contributed to the injury.
Why is summary judgment the key moment?
Because defendants litigate Privette through summary-judgment motions under CCP § 437c, aiming to end the case before trial. Surviving that motion is usually the difference between a recovery and nothing.
The bottom line
The defense in a worksite case rarely wants to talk about how a worker got hurt. It wants to talk about a doctrine that supposedly makes that irrelevant. Knowing where that doctrine ends — and proving the facts that take a case past it — is how a man who was told he had no claim ends up with a recovery.
Hurt on a job by a company that wasn't your employer? Talk to us.
Free, confidential consultation. We take complex worksite and third-party liability cases — and we welcome co-counsel and referrals from other attorneys (fee splits honored under Rule 1.5.1).
Request a ConsultationResults depend on the unique facts of each case. Prior results do not guarantee or predict a similar outcome in any future matter. This article is general information about California law, not legal advice, and does not create an attorney-client relationship. Responsible for content: Tom Vertanous, Esq., The Vertanous Firm, P.C., SBN 330760 — (626) 888-2223.