A Riveting (or at Least Insightful) Explanation of the Privette Doctrine

Garret Murai | California Construction Law Blog

“The wheels of justice turn slowly, but grind exceedingly fine” – Plutarch

And grind they do . . . slowly. For long time readers of the California Construction Law Blog you may recall a case we reported on over three years ago in 2018 – Sandoval v. Qualcomm Incorporated – a rather sad case about a severely injured employee of an electrical subcontractor with an even more surprisingly ending.

In Sandoval, the 4th District Court of Appeals affirmed a $7 million judgment against project owner Qualcomm Incorporated in which a jury found that Qualcomm was liable under the Privette doctrine for injuries sustained by the employee who was severely burned over one third of his body by an “arc flash” from a live circuit breaker. The Court of Appeals, in a surprising decision, upheld the verdict holding that Qualcomm was liable even through: (1) Qualcomm had informed the electrical subcontractor that certain live circuit breakers were energized; (2) Qualcomm had not authorized the lower-tiered contractor to remove a panel that resulted in the arc flash; and (3) employees of Qualcomm were not in the room when the accident happened.

Fast forward three years to September 2021. Qualcomm attorneys petition the California Supreme Court for review of the Court of Appeal’s decision. And the Supreme Court granted review.

The Supreme Court Decision

In Sandoval v. Qualcomm Incorporated, Case No. S252796 (September 9, 2021), the California Supreme Court, describing the Privette doctrine and two of its exceptions – the “concealed hazard” exception and the “retained control” exception – explained:

Strong public policy considerations readily acknowledged in our past decisions generally support a straightforward presumption about the responsibilities of hirers and contractors for worker injuries in situations like this: A person or entity hiring an independent contractor (a “hirer”) ordinarily delegates to that independent contractor all responsibility for the safety of the contractor’s workers. This presumption is rooted in hirers’ reasons for employing contractors in the first place, and society’s need for clear rules about who’s responsible for avoiding harms to workers when contractors are hired. We have therefore generally avoided subjecting hirers to tort liability for those workers’ injuries. But that presumption gives way to two recognized exceptions: where the hirer either withholds critical information regarding a concealed hazard (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664 (Kinsman)); or retains control over the contractor’s work and actually exercises that control in a way that affirmatively contributes to the worker’s injury (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker)).

Describing the “concealed hazard” exception under Kinsman, the Supreme Court explained:

In Kinsman we recognized that a landowner-hirer cannot effectively delegate its duties respecting a concealed hazard without disclosing that hazard to the contractor. In this context, a “concealed” hazard means something specific: a hazard that the hirer either knows or reasonably should know exists, and that the contractor does not know exists and could not reasonably discover without the hirer’s disclosure. We draw no distinction between a hazard whose very existence is concealed and a hazard which is in some way apparent but whose dangerousness is concealed. The sufficiency of the hirer’s disclosure is “measured by a negligence standard,” that is, a standard of reasonable care. If the hirer does not sufficiently disclose the concealed hazard, the hirer retains its tort duties owed to the contract workers respecting that hazard. A contrary conclusion would cut against the rationale justifying Privette‘s presumption of delegation. A contractor is not best situated to perform work safely when the contractor lacks critical information about relevant hazards. Nor is there any unfairness in holding the hirer liable where only the hirer possessed that critical knowledge.

Describing the “retained control” exception under Hooker, the Supreme Court explained:

In Hooker, we recognized that hirers do not always fully delegate control to their contractors. We concluded that in some such “retained control” situations, notwithstanding Privette‘s presumption to the contrary, the hirer must owe a duty of care to the contract workers.

The plaintiff in such cases must establish not only that the hirer retained control over the contracted work, but also that the hirer actually exercised that retained control in a manner that affirmatively contributed to the contract worker’s injury. Because Hooker‘s application has produced significant confusion, we dwell at some length here on the meaning of Hooker‘s three key concepts: retained control, actual exercise, and affirmative contribution.

A hirer “retains control” where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor. This concept simply incorporates the Restatements’ theory of retained control: Against a backdrop of no hirer duty respecting the manner of performance of work entrusted to a contractor, the Restatements provide that a hirer who retains control over any part of that work owes others a duty of reasonable care respecting the hirer’s exercise of that retained control. So “retained control” refers specifically to a hirer’s authority over work entrusted to the contractor, i.e., work the contractor has agreed to perform. For simplicity we will often call this the “contracted work” — irrespective of whether it’s set out in a written contract or arises from an informal agreement. A hirer’s authority over noncontract work — although potentially giving rise to other tort duties — thus does not give rise to a retained control duty unless it has the effect of creating authority over the contracted work. Furthermore, a hirer’s authority over the contracted work amounts to retained control only if the hirer’s exercise of that authority would sufficiently limit the contractor’s freedom to perform the contracted work in the contractor’s own manner. 

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A hirer “actually exercise[s]” its retained control over the contracted work when it involves itself in the contracted work “such that the contractor is not entirely free to do the work in the contractor’s own manner.” In other words, the hirer must exert some influence over the manner in which the contracted work is performed. Unlike “retained control,” which is satisfied where the hirer retains merely the right to become so involved, “actual exercise” requires that the hirer in fact involve itself, such as through direction, participation, or induced reliance.

“Affirmative contribution” means that the hirer’s exercise of retained control contributes to the injury in a way that isn’t merely derivative of the contractor’s contribution to the injury. Where the contractor’s conduct is the immediate cause of injury, the affirmative contribution requirement can be satisfied only if the hirer in some respect induced — not just failed to prevent — the contractor’s injury-causing conduct. It is not enough for the hirer’s exercise of control to incidentally give the hirer the opportunity to prevent the contractor’s injury-causing conduct.

A hirer’s conduct also satisfies the affirmative contribution requirement where the hirer’s exercise of retained control contributes to the injury independently of the contractor’s contribution (if any) to the injury. 

The critical factor here is the relationship between the hirer’s conduct and the contractor’s conduct, not whether the hirer’s conduct, assessed in isolation, can be described as “affirmative conduct.” Importantly, neither “actual exercise” nor “affirmative contribution” requires that the hirer’s negligence (if any) consist of an affirmative act. The hirer’s negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty under Hooker.

Applying each of these exceptions, the Supreme Court held that Qualcomm owed no tort duty to the injured worker, Sandoval, because Qualcomm neither failed to sufficiently disclose the hazard of a potential arc flash under Kinsman nor affirmatively contributed to Sandoval’s injuries under Hooker. The Supreme Court also held that the pattern jury instruction used in the case – CACI No. 1009B – does not adequately capture the elements of a Hooker claim.

With respect to the “concealed hazard” exception under Kinsman, the Supreme Court explained that Frank Sharghi, President of TransPower Testing, Inc., the general contractor who had hired the subcontractor employing Sandoval, had testified that that he was aware of which circuits were live and which were not. Thus, explained the Supreme Court, the condition of the live circuits “was not actually concealed.” Further, explained the Supreme Court,  the testimony of Qualcomm’s plant operator Mark Beckelman, was that he reminded Sharghi and his team that some circuits in the switchgear room would remain live. Thus, explained the Supreme Court, Qualcomm had in fact disclosed that there would be live circuits in the switchgear room. “Either way,” held the Supreme Court, “Qualcomm effectively delegated to TransPower any tort duties Qualcomm otherwise would have owed Sandoval respecting these live circuits under Kinsman.”

With respect to the “retained control” exception under Hooker, the Supreme Court explained that, while Qualcomm had control over the power-down process, by powering-down the circuits to be worked on but not powering down other circuits. this did not constitute “retained control” over the contracted work because the power-down process was not within the scope of work Qualcomm had entrusted to TransPower:

True: Qualcomm directed TransPower to observe the power-down process. And it asked TransPower to confirm that TransPower was satisfied with Qualcomm’s performance of the power-down process. Qualcomm nonetheless stopped short of offering — and TransPower never agreed — that TransPower take responsibility for actually performing the power-down process. Nor is it enough here that the power-down process was a necessary precondition for TransPower’s work, or that both the power-down process and TransPower’s work were essential components of a single larger job. Instead, Qualcomm’s performance of the power-down process implicates a retained control duty only to the extent that performance actually resulted in retained control over the work Qualcomm did entrust to TransPower: the inspection of the main cogen circuit.

Further, explained the Supreme Court, although Qualcomm’s performance of the power-down process arguably limited TransPower’s own freedom to power down “additional” circuits during its inspection, Qualcomm did not retain control over the inspection of the main cogen circuit merely by keeping certain other circuits live:

Qualcomm’s creation of this condition at the worksite imposed too little a degree of control over TransPower’s manner of performing the inspection. Even if Qualcomm could be said to have conveyed an expectation that TransPower perform its work in the presence of live circuits, TransPower was aware of and had ample freedom within the scope of its entrusted work to accommodate the presence of the live circuits effectively in its own manner, particularly since they were safely covered by bolted-on protective panels and not relevant to TransPower’s inspection. Qualcomm did not retain control over the inspection merely by declining to shut down these circuits or to give TransPower the authority to do so. Under the circumstances here, Qualcomm’s control over what was and what was not powered down did not constitute retained control over the contracted work.

Finally, explained the Supreme Court, even though Qualcomm may have had authority to require specific precautions during the inspection, such as by powering down the generator, Qualcomm did not “actually exercise” that authority:

Even assuming that Qualcomm retained control by retaining the authority to require or provide such precautions — e.g., supervision, a personal warning for Sandoval, arc flash protection suits, barricades, and/or additional warning signage — TransPower remained entirely free to implement (or not) any of these precautions in its own manner, issues over which Qualcomm exerted no influence. Although Sandoval argues that Qualcomm’s performance of the power-down process gave rise to a “duty” on Qualcomm’s part to take these precautions, he does not argue — nor is there any indication in the evidence — that Qualcomm’s performance of the power-down process induced TransPower’s failure to take any of these precautions itself. Likewise, that Qualcomm may have previously supervised TransPower’s work does not establish, in this case, that Qualcomm induced TransPower’s reliance on Qualcomm supervision. Sharghi’s uncontradicted testimony established that the reason TransPower did not request or wait for Qualcomm’s supervision was that Sharghi felt “in charge,” “knew what [he was] doing,” and didn’t “need” a monitor. That Qualcomm’s employees may have been trained to provide personal warnings to everyone in the room, or that Qualcomm’s managers and experts may have considered such warnings “critical,” does not establish that Qualcomm induced TransPower’s reliance on Qualcomm to provide them. Substantial evidence does not support the conclusion that Qualcomm actually exercised its retained control with regard to any of these precautions.

Conclusion

Sandoval provides important clarifications under Privette doctrine and, specifically, with respect to the “retained control” exception under Hooker. First, even if a hirer could make a worksite safer, as in the present case had Qualcomm powered down all of the circuits, if the scope of work does not involve work in the still dangerous areas, the hirer will not be deemed to have retained control over those dangerous areas. Second, even if there are dangerous areas of a worksite, so long as a contractor has adequate means of ensuring the safety of its workers, the hirer will again not be deemed to have retained control over those dangerous areas. And, finally, even if a hirer could require that its contractors implement certain worksite safety measures, a hirer will not be deemed to have retained control over the contractor’s means and methods so as to avoid injury to the contractor’s employees. 

Extra Credit Points: Can you guess what the illustration above is based on? If you guessed Plutarch, sorry. If you guessed the “Wheel of Pain” from 1982’s Conan the Barbarian, featuring our former Governor, you guessed right. We’re very high brow here at the California Construction Law Blog.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Court Finds No Coverage for Workplace “Prank” With Nail Gun

Craig Rokuson | Traub Lieberman

In the recent case of Metro. Prop. & Cas. Ins. Co. v. Burby, 2022 NY Slip Op 22070, ¶ 1 (Sup. Ct.) Justice Richard M. Platkin of the Supreme Court of Albany County, New York examined a homeowners insurance policy and determined that a duty to defend was triggered in a case seeking recovery for injuries sustained when the insured, Burby allegedly discharged a nail gun in the bathroom of a work facility at which both Burby and the underlying plaintiff worked. Burby pled guilty to assault in the third degree for recklessly causing physical injury. MetLife, Burby’s carrier, disclaimed coverage based on lack of an occurrence, the business activities exclusion and the intentional loss exclusion, which bars coverage for injuries expected or intended by the insured or injuries that are the result of the insured’s intentional and criminal acts or omissions. Justice Platkin initially reviewed the intentional loss exclusion and lack of an occurrence and found that, from a duty to defend perspective, neither provided a dispositive coverage defense. However, the court found that the broadly worded business activities exclusion, which was not the subject of MetLife’s motion and instead was the subject of a cross motion by Burby, applied to bar coverage. In doing so, the court searched the record and granted summary judgment on the issue, despite MetLife not moving for relief under the exclusion.

With respect to the expected or intended prong of the intentional loss exclusion, the court found that, even if Burby did intend to pull the trigger of the nail gun, it was not pled in the underlying complaint that the harm that resulted to the plaintiff was expected or intended. As such, the court concluded that MetLife did not prove that there was no possible factual or legal basis upon which it could be found that Burby did not reasonably expect or intend to cause injury to the plaintiff.

With respect to the intentional and criminal acts prong of the intentional loss exclusion, the court held that the exclusion is satisfied where the victim’s injuries were caused by an intentional act that constitutes a crime. Here, the court noted that Burby clearly engaged in a crime, but that the record did not establish that as a matter of law that the injuries were caused by an intentional act. In this regard, the court noted that, in the underlying complaint, plaintiff alleged that Burby was known to often to engage in horseplay and/or pranks with other employees, such that a reasonable possibility of accidental discharge existed.

With respect to whether the incident was an “occurrence,” defined to be an accident, the court also found that MetLife fell short. Although assault is not an occurrence, Justice Platkin noted that the underlying complaint alleged, in the alternative, causes of action for ordinary negligence, gross negligence and recklessness as the result of a “prank” gone wrong. Further, as Burby pled guilty of reckless—not intentional—assault, the plea was not determinative of whether Burby’s actions were an “occurrence.”

The court then turned to Burby’s cross motion seeking a declaration of coverage. After dismissing two non-dispositive exclusions, the court examined the business activities exclusion, noting that the exclusion broadly bars coverage for injuries arising out of or connected with Burby’s business activities. “Arising out of,” under New York law, is interpreted to mean that coverage does not exist when the injury would not have occurred “but for” the excluded activity. Here, Burby injured a fellow employee at their workplace, involving Burby’s misuse of a work tool. As the court noted, had Burby not been present at his workplace, he would not have access to the plaintiff and a nail gun. As such, the court held that Burby’s business activities provided both the occasion for the incident and the instrumentality of the injury. The court searched the record and granted summary judgment on the duty to defend to MetLife.

This case illustrates both the broad duty to defend under New York law, in that the court did not preclude coverage based on lack of an occurrence or on the intentional loss exclusion. It also illustrates the broad interpretation of “arising out of” when used in an exclusion.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Can Your Employee File a Personal Injury Claim if They’re Injured at Work?

Louis Patino | Construction Executive

Construction accidents can happen to anyone. It’s common for employees to work at height, with machinery or alongside any number of potential hazards, so it’s no surprise that injury rates in construction are 71% higher compared to other industries.

Anything from a ladder manufacturing defect to an unguarded ledge or wet surface can increase the likelihood of a fall, but those aren’t the only dangers. If scaffolding collapses due to an excessive load or improper construction, it can prove fatal.

Then, there are struck-by hazards—one of the Occupational Safety and Health Administration’s (OSHA) “Fatal Four”—including falling, swinging and rolling objects; crane misuse; electrical faults; and issues with personal protective equipment. These are all hazards construction workers have to contend with daily.

Such dangers can also cause wide-ranging injuries, from broken bones that heal without complication to life-changing traumatic brain injuries or spinal injuries that have huge repercussions for construction workers.

In any case, a construction accident can cause a long, often painful, recovery, with workers needing significant time off work to recover.

But where do they stand when it comes to compensation? Can they file a personal injury claim or can they expect only a workers’ compensation payout to cover their lost income and medical expenses?

WHAT’S THE DIFFERENCE BETWEEN WORKERS’ COMP AND A PERSONAL INJURY CLAIM?

Most construction workers are aware they are entitled to workers’ compensation when they’re injured at work. In all states but Texas, workers’ compensation insurance is mandatory, which means that if your employee is injured at work—and they can prove it—they can claim workers’ compensation.

It’s important to note that there are exceptions depending on your location. For example, workers’ compensation insurance is not required in some states if you employ only a few individuals or have a smaller revenue. That said, workers’ comp exists to protect you from liability while also providing your employee with a financial buffer if they’re in an accident, so it’s well worth considering.

So what does the insurance cover? Workers’ compensation covers any medical expenses incurred to treat your employee’s injury and lost wages for time off work. They aren’t entitled to any additional compensation for pain and suffering or any loss of enjoyment a long-term injury might cause.

What many construction workers aren’t aware of, though, is that they may be able to file a personal injury claim.

The burden of proof for this type of claim is more complex, as they must show that a third party is liable for their injury.

To file a third-party personal injury claim, an employee or contractor must prove:

  • The third party owed them a duty of care;
  • The third party breached that duty of care; and
  • That breach of duty caused the injury.

A breach could be any negligent behavior, from failing to protect workers from exposure to hazardous substances or materials or providing them with defective personal protective equipment.

The benefit of an individual filing a personal injury claim is that they could also receive non-economic damages. These damages differ from economic damages like lost wages or medical expenses because they can’t be as easily quantified in monetary terms. Common non-economic damages include pain and suffering, emotional distress and loss of enjoyment. This can lead to a potentially hefty payout, especially for younger workers.

WHICH THIRD PARTIES MIGHT BE LIABLE?

Your employee might have been injured during a construction accident and received a workers’ compensation payout but, sometimes, third parties are liable for the accident. In this case, they may also be able to file a personal injury claim.

Does this mean that you could face a hefty personal injury payout? Not necessarily.

If you have workers’ compensation, this will cover your employees’ lost wages and medical expenses. Filing a workers’ compensation claim is not an admission of liability or negligence, as these don’t come into play.

For example, if you employ a construction worker who has an incident while using faulty equipment, you can file a workers’ compensation claim with your insurer to cover their medical treatment and lost wages. Because you have this insurance, your employee cannot sue you. However, because the tool caused the injury and was defective, the employee may choose to sue the manufacturer.

If you don’t have insurance (for example, you’re in Texas and you either choose not to or you don’t meet the mandatory criteria) and your employee can prove you have breached a duty of care, they may choose to file a personal injury claim. If their claim is successful, you could face a large payout comprising not just their past and future monetary expenses but also an additional payout for any “pain and suffering” the injury has caused.

WHAT ARE EMPLOYEES’ OPTIONS FOR GETTING COMPENSATION AFTER THEIR CONSTRUCTION ACCIDENT?

Claiming Workers’ Compensation

If you have workers’ compensation insurance and an employee has been in an incident at work, they should immediately seek medical treatment and then inform you of their injury—making it clear that it happened on the job. Employees have a strict time frame to do this, ranging from a few days to several months, depending on your state.

Then, you need to inform your insurer about the incident  and file the appropriate paperwork. The Workers’ Compensation Commission in your state will review the case and determine whether your employee is entitled to compensation and how much they should receive.

Filing a Third-Party Lawsuit

If your employee believes a third party was negligent or reckless and caused their injury, they might file a third-party lawsuit. Remember, they can only file a claim against you if you do not have workers’ compensation insurance.

To prove negligence, they will need sufficient evidence. This might include witness testimonies, medical records, citation reports, accident site examination reports, OSHA violation investigative reports and details of any equipment used.

If they make a claim against you for negligence, they may choose to hire a dedicated construction accident injury lawyer to handle their case. Filing a claim is increasingly an option, as many attorneys work on a contingency basis, which means they’ll only ever pay legal fees if their case is successful. If you are facing a claim, you should also seek legal advice, as a large compensation payout could significantly impact your business.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

California DIR Takes Aim at Public Works Construction Sites – Construction Employers Should Review Workplace Safety Compliance

Sean Paisan and Sierra Vierra | Jackson Lewis

The Department of Industrial Relations’ (DIR) Labor Enforcement Task Force (LETF) has announced an initiative to inspect publicly funded construction sites to ensure employers provide worker’s compensation and follow labor laws, including workplace health and safety requirements.

With this new focus, construction employers who work on public works projects should review their workplace compliance to avoid citations.

Cal/OSHA has a guidance page for construction employers which provides an overview of issues for employers to consider and additional guidance that is available.

Some of the compliance issues that construction employers should review include:

  • Access to Work Levels
  • Airborne Contaminants
  • Confined Spaces
  • Emergency Medical Services
  • Ergonomics
  • Fall Protection
  • Heat Illness Prevention
  • Injury and Illness Prevention Program
  • Personal Protective Equipment

These and many more compliance issues are further identified on Cal/OSHA’s guidance page for construction employers.  There are also administrative requirements that employers should review, including having required postings and documents, such as safety data sheets, available on site.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Plaintiffs Not Barred from Proving Causation in Slip and Fall Case, Even With No Witnesses and No Memory of Fall Itself

David Hoynacki, Arezoo Jamshidi and Lawrence S. Zucker II | Haight Brown & Bonesteel

On January 19, 2022, the California Court of Appeal, Second Appellate District (Los Angeles), held that a plaintiff is not barred as a matter of law from proving causation in a slip and fall case if there were no witnesses to the fall, and the plaintiff does not remember the fall itself. The Court of Appeal stated specifically that circumstantial evidence would permit a jury to make a “reasonable and probable inference” regarding contributing factors to a fall, even with no eye-witness evidence.

In Kaney v. Mazza (BC619247, Jan. 19, 2022), plaintiff and appellant Lydia Kaney (Kaney), was visiting her sister in her rented home in September of 2014. At some point during the visit, the light in the bathroom at the top of the stairs stopped working—Kaney used the stairs, and fell. Kaney filed suit against her sister and the owner of the home alleging premises liability, negligence, and violation of the Americans with Disabilities Act (ADA). In her deposition, Kaney testified that she remembered going up to the bathroom, and then waking up on the floor in pain. She could not remember how she fell; she did not know if she had missed a step, or if she had slipped and fallen backwards. She speculated that a worn-out bath mat may have been the cause of the slip and fall because the rubber traction on the bath mat was worn away.

The homeowner filed a motion for summary judgment arguing that there is no triable issue as Kaney did not remember how she fell. The owner also argued against the ADA violations and provided expert testimony that the house itself was “grandfathered in” under previous building codes due to its age. In opposition, Kaney submitted a declaration by safety and engineering expert Brad Avrit. He opined that the stairwell itself was unsafe, as there was no handrail present, there was significant differentiation between the risers and treads, and the stairway itself was not 30 inches in width. The trial court granted summary judgment stating that “when opposition to summary judgment is based entirely on inferences, such inferences must be ‘reasonably deducible from the evidence and not such as are derived from speculation, conjecture, or guesswork.’” Because Kaney could not state how she fell, there was no evidence that the stairs caused the fall in any way.

On appeal, the court discussed the type of evidence required to prove causation in a slip-and-fall case. The appellate court stated that expert opinion is only necessary in cases of particular complexity; in this case, the absence of a handrail or the size of the risers and how they may have contributed to a plaintiff’s fall was within common knowledge, and expert testimony was not necessary to establish causation. The court cited several cases in which a combination of circumstantial evidence led to “reasonable and probable inferences” in which the absence of a barrier was a substantial factor in the plaintiffs’ falls. (See Burdette v. Rollefson Construction Co. (1959) 52 Cal.2d 720; Schumann v. C. R. Reichel Engineering Co. (1960) 187 Cal.App.2d 309.) The difference in this case is that there is no safety rail or other barrier that would have immediately prevented Kaney’s injury; the Court of Appeal, however, did not find this to be a significant distinction.

The consequences of this ruling are significant for defendants in a variety of different types of cases. If there are enough reasonable or persuasive factors that would lead a layperson to believe they could have contributed to an injury, then the plaintiff does not need to provide specific testimony on how an injury occurred. This could lower the bar for a potential plaintiff to bring a lawsuit, and changes the calculations on how to defend such complaints.

This document is intended to provide you with information about general liability law related developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact the authors. This communication may be considered advertising in some jurisdictions.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.