In a spectacular win, Partner Keith Smith and Senior Counsel Courtney Jakofsky, successfully obtained summary judgment and a dismissal in a general negligence and premises liability case filed against their general contractor and owner clients by an employee of a subcontractor working on the project.

The case arose from an incident that occurred at an ongoing construction site. WSHB's clients served as the general contractor and owner on the project and hired several subcontractors. An employee of one of the subcontractors was injured when he tripped on a nail and fell against the guard rail when descending stair from one landing on the project to another. He claimed that he injured his right shoulder, left hip and low back as a result of his fall and sought recovery against the owner and general contractor. It is undisputed that he was acting in the course and scope of his employment at the time of the incident and that the nail was placed on the landing by an employee of another subcontractor.

Although the worker received workers' compensation benefits through his employer (one of the subcontractors on the project), he filed an action against the general contractor and owner for general negligence and premises liability. During the course of discovery, including written admissions and in his deposition, plaintiff admitted several key facts that ultimately defeated his claims. First, he admitted that neither the owner nor the general contractor provided any direction on how to perform his work at the site. Second, he admitted that the defendants never provided Plaintiff any tools to perform his work. Third, he admitted that the defendants never represented that the jobsite was safe. Fourth, he admitted to receiving workers compensation benefits from his employer as a result of his injury. Fifth, he admitted that the defendants did not train Plaintiff on how to perform his work on the site. Sixth, he admitted that the defendants did not interfere in any way with his work. Finally and most importantly, Plaintiff admitted that the defendants did not affirmatively contribute to the incident causing his injuries.

According to Privette v. Superior Court (1993) 5 Cal.4th 689, a plaintiff must demonstrate that a defendant (1) retained control over the safety of the site and (2) the retained control affirmatively contributed to the plaintiff's injuries. If the plaintiff cannot make such a showing, the exclusive remedy will be workers' compensation benefits.

As a result of the key admissions obtained during the course of discovery, the court granted summary judgment in favor of the general contractor. Upon receipt of the motion for summary judgment pertaining to the owner, the Plaintiff voluntarily dismissed his claims against the owner, leaving the motion for summary judgment to be heard pertaining to the general contractor.

Congratulations to Keith and Courtney for their work on this case and the positive result for the client!

By using this site, you agree to our updated Privacy Policy.