June 11, 2020

Horne v. Ahern Rentals, Inc. (2020) 50 Cal.App.5th 192, review granted Sept. 16, 2020, S263309

Plaintiffs sued Ahern Rentals, a lessor of construction vehicles, for the alleged wrongful death of their decedent, an employee of a contractor hired to service Ahern’s vehicles. The employee sustained fatal injuries on Ahern’s premises while replacing tires on a forklift. Plaintiffs claimed Ahern was negligent in allowing the tire change to proceed with the forklift parked on an uneven surface, with its boom raised, which caused the forklift to sway and collapse during the tire change.

The Court of Appeal affirmed summary judgment for Ahern based on the Privette doctrine, under which one who hires a contractor is generally not liable for work-related injuries to the contractor’s employees. Plaintiffs invoked the retained control exception to the Privette doctrine. Under that exception, a hirer may be liable where it affirmatively contributes to the alleged injuries. The court rejected that theory, holding that at most, plaintiff’s evidence demonstrated Ahern passively permitted an unsafe condition to arise, conduct that did not rise to the level of affirmative contribution.

The scope of the retained control exception is currently pending in the California Supreme Court in Sandoval v. Qualcomm (S252796) and Gonzalez v. Mathis (S247677). Horvitz & Levy represents Qualcomm in the Sandoval case and has filed an amicus brief in support of defendant Johnny Mathis in the Gonzalez case.