On July 30, 2018, a California Court of Appeal ruled that a third-party safety consultant can be held liable to an injured worker through a “negligent undertaking” claim.
In Peredia v. HR Mobile Services, Inc., the California appellate court reversed a trial court decision to grant summary judgment in favor of a safety consultant sued by the parents of a 19-year old worker who died after being hit and run over by a tractor. The lawsuit sought wrongful death and related claims against the safety consultant based on the allegation that the safety consultant failed to create, institute and implement an effective safety program at the company that employed the deceased worker. Before the fatal accident, the company had hired the safety consultant through a “handshake agreement” to render safety consulting services, including proving safety policy documents, quarterly safety meetings and quarterly safety inspections at the employer’s worksite.
The California appellate court concluded that the common-law theory of “negligent undertaking” could apply to a safety consultant if:
The California appellate court concluded that the safety consultant in Peredia “undertook to assist [the company] in carrying out its workplace safety obligations and accepted a role (the extent of which is disputed) in conducting safety inspections and safety training.” The court also rejected the argument that a safety consultant needs to fully assume the company’s safety obligations in order for the negligent undertaking theory to apply. Because courts are likely to focus on the factors above, employers and safety consultants should take various steps:
In addition, safety consultants, independent consultants and even insurance brokers with safety consultants should do the following:
Although the above are general guidelines, both safety consultants and employers should consult with counsel regarding the effect of Peredia on their own businesses.
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