Independent Contractors in California PI Law.

Overview

The distinction between employees and independent contractors is one of the most consequential in California tort law. When a worker is classified as an employee, the hiring entity faces vicarious liability under respondeat superior. When the worker is classified as an independent contractor, the Privette doctrine generally shields the hirer from liability -- but California has carved out significant exceptions that frequently allow injured workers to pursue claims against the hiring entity.

This guide covers the classification tests, the Privette defense and its progeny, the peculiar risk doctrine, nondelegable duties, and practical strategies for overcoming the independent contractor defense. It is written for injured workers, their families, and the attorneys who represent them. Call us, or any California lawyer you trust, before you make decisions that affect your claim.

Employee vs. Independent Contractor: The Tests

The Borello Test (Common Law)

The primary test for distinguishing employees from independent contractors in California tort law comes from S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. The most important factor is whether the hiring entity has the right to control not just what work is done, but how it is done.

Courts also consider secondary factors: whether the worker is engaged in a distinct occupation, who supplies tools and workplace, the method of payment, the length of engagement, and whether the parties believed they were creating an employment relationship.

The ABC Test (Dynamex)

In Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, the California Supreme Court adopted the ABC test for wage and hour classification. A worker is presumed to be an employee unless the hirer proves: (A) freedom from control, (B) work outside the hirer's usual business, and (C) the worker's independently established trade.

Context	Applicable Test
Tort / vicarious liability	Borello test
Wage and hour claims	ABC test (Dynamex / AB 5)
Workers' compensation	Borello test (generally)
Tax purposes	Common-law / IRS factors

The Privette Doctrine

Privette v. Superior Court (1993) 5 Cal.4th 689 established that when a person hires an independent contractor, the hirer is generally not liable for injuries to the contractor's employees arising from the contractor's performance of the work. The rationale is that the contractor's workers' compensation insurance is the appropriate source of compensation for the contractor's employees.

Privette protects the hirer from tort claims by the contractor's employees. It does not protect the hirer from claims by third parties (bystanders, customers) injured by the contractor's negligence, nor from direct negligence claims based on the hirer's own conduct.

Four Exceptions to the Privette Doctrine

1. Retained Control (Hooker)

In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, the court held that a hirer may be liable when it retains control over the contractor's work and negligently exercises that control in a manner that affirmatively contributes to the employee's injury. Mere retention of the right to control is insufficient -- the hirer must have actually exercised control negligently.

2. Concealed Hazard (Kinsman)

In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, the court held that a hirer is liable when it knows or should know of a concealed hazard on the premises that the contractor cannot reasonably discover, and the hirer fails to warn.

3. Nondelegable Duty (SeaBright)

In SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, the court held that a hirer cannot delegate a statutory or regulatory safety duty to a contractor and then invoke Privette when the contractor fails to comply. Cal-OSHA requirements and building code duties are common examples.

4. Unsafe Equipment (McKown)

In McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, the court addressed situations where the hirer provides equipment it knows or should know is unsafe, and the contractor's employee is injured by that equipment.

Peculiar Risk Doctrine

The peculiar risk doctrine, rooted in the Restatement (Second) of Torts sections 416 and 427, historically provided that a hirer could be liable to third parties when the contracted work involved a risk arising out of the particular character of the work. After Privette, this doctrine was significantly limited for contractor employees, but it may still apply for claims by third parties -- bystanders, neighbors, and passersby -- injured by a contractor's negligence in performing inherently dangerous work.

Nondelegable Duties Beyond Privette

California recognizes a broader category of nondelegable duties -- duties that the law imposes on a particular party and that cannot be discharged by delegating performance to an independent contractor.

Category	Example	Authority
Statutory duties	Cal-OSHA safety requirements	SeaBright
Common carrier duties	Highest care to passengers	Civ. Code 2100
Landowner duties	Safe premises maintenance	Brown v. Pepperdine
Regulatory duties	Building, health, safety codes	Various

Negligent Hiring of Contractors

A hiring party may face direct negligence liability for negligently selecting a contractor. This theory requires proof that the hirer had a duty to exercise reasonable care in selecting a competent contractor, knew or should have known the contractor was incompetent or unfit, and that the unfitness caused the injury. Evidence includes failure to verify licenses, failure to check safety records, or hiring a contractor with a history of Cal-OSHA violations.

Plaintiff's Strategy: Overcoming the Privette Defense

When the defense raises Privette, respond on multiple fronts:

1. Argue employee status. If the worker was actually an employee under the Borello test, Privette does not apply at all.
2. Invoke the retained control exception. Show the hirer actively directed the work and exercised control negligently.
3. Invoke the concealed hazard exception. Show the hirer knew of dangers the contractor could not discover.
4. Invoke the nondelegable duty exception. Identify specific Cal-OSHA or regulatory duties that could not be delegated.
5. Pursue direct negligence. Plead negligent hiring, negligent supervision, or premises liability directly against the hirer.

Cross-References

• Pure Comparative Fault — apportionment when both hirer and contractor are at fault
• Negligent Undertaking — voluntary assumption of duty by contractors
• Assumption of Risk — defense doctrines in contractor injury cases
• Premises Liability — landowner duties and contractor work on premises
• Economic Damages — calculating damages in workplace injury cases
• Wrongful Death — fatal workplace injury claims

Common Questions

Sources & Citations

Sources & Legal Citations

1. Privette v. Superior Court (1993) 5 Cal.4th 689. Established that hirers are generally not liable for injuries to independent contractors' employees.
2. Hooker v. Department of Transportation (2002) 27 Cal.4th 198. Retained control exception: hirer liable when it negligently exercises retained control over the work.
3. Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659. Concealed hazard exception: hirer liable for known hazards contractor could not discover.
4. SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590. Nondelegable duty exception: statutory safety duties cannot be delegated to contractors.
5. S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341. The seminal multi-factor test for employee vs. independent contractor classification.
6. CACI 1009 — Hirer Liability: Retained Control. Jury instruction for retained control claims against hirers of independent contractors.