Family of construction worker killed by drunk driver sues California Department of Transportation

Defendant alleges it passed on responsibility for work safety measures to subcontractor

BY Bernise Carolino 15 Mar 2023

The Department of Transportation (DOT) was not liable for a construction worker’s death on the jobsite since it delegated to the subcontractor its duty to provide a safe work environment, the California Court of Appeal said in a recent case.

The case of Marin et al. v. Department of Transportation arose from a 2015 contract between the DOT and O.C. Jones & Sons, Inc. The agreement delegated to O.C. Jones, as the subcontractor, the responsibility for selecting the means and methods for performing the work, including worker safety measures.

One night, a car operated by a drunk driver entered the closed lanes of the project site. The vehicle struck and killed one of the construction workers hired by the subcontractor.

The deceased worker’s wife and minor child filed a wrongful death lawsuit seeking damages from the DOT. They alleged the following violations of California’s Government Code: vicarious liability for the negligence of employees under section 815.2 and a dangerous condition on public property under section 835.

The DOT filed a motion for summary judgment. It made the following arguments. First, it could not reasonably foresee the drunk driver’s criminal conduct. Second, it was immune from liability as a public entity under sections 830.8 and 845 of the Government Code. Third, since it properly delegated workplace safety to the subcontractor, the legal doctrine in the case of Privette v. Superior Court (1993) barred the lawsuit.

The DOT’s inspector gave a declaration as evidence in support of the DOT’s arguments. He said that he:

had the responsibility of ensuring that the subcontractor complied with the contract’s terms, including its safety obligations
did not instruct or control the subcontractor as to its compliance with such obligations
observed, on the night of the tragedy, that the subcontractor followed its safety plan, including by placing warning signs and the arrow board at the required times
authorized the subcontractor’s request for a road closure in a new area
was absent when the accident occurred because he left the project site for a meal

The DOT’s construction engineer, who supervised the project, also provided a declaration. The engineer said that the DOT did not direct the subcontractor on the means and methods of performing the work required under the contract.

The trial court granted summary judgment in the DOT’s favor. It agreed that the DOT was not liable for the death because it delegated to the subcontractor its duty to provide a safe work environment and because it could not reasonably foresee the drunk driver’s actions.

The worker’s surviving family members appealed. The California Court of Appeal for the First District affirmed the trial court’s decision.

First, the appellate court found that the DOT was not liable because it did not retain control over the construction site where the tragedy occurred and did not actually exercise that control in a way that affirmatively contributed to the worker’s injuries.

Second, in line with the Privette doctrine, the DOT was not liable either under sections 815.2 or 835 of the Government Code because the contract expressly delegated jobsite safety to the subcontractor, who was also the deceased worker’s employer, the appellate court said.