1

Filed 10/12/22 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

TOMMY RAY MCCULLAR et al.,

Plaintiffs and Appellants,

v.

SMC CONTRACTING, INC.,

Defendant and Respondent.

C093295

(Super. Ct. No. SC20160049)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

APPEAL from a judgment of the Superior Court of El Dorado County, Michael J. 

McLaughlin, Judge. Affirmed.

Law Office of Mark R. Swartz, Mark R. Swartz; and C. Athena Roussos for 

Plaintiffs and Appellants.

Ford, Walker, Haggerty & Behar and B. Eric Nelson for Defendant and 

Respondent.

THE COURT:

It is ordered that the opinion filed herein on August 29, 2022, and certified for 

publication on September 13, 2022, be modified as follows:

1. On page 17, after the first partial paragraph that ends with “we apply similar logic 

to reject McCullar’s negligence claim here,” the following paragraphs and footnote are 
2

inserted. This footnote shall be footnote 1, which will require renumbering of all

subsequent footnotes.

In a petition for rehearing, McCullar maintains that Tverberg II is 

analogous and Gonzalez is distinguishable for several reasons. He first suggests 

Gonzalez is distinguishable because there, the hirer’s failure to act led to the 

creation of a workplace hazard; but here, the hirer’s affirmative act led to the 

creation of a workplace hazard. But in our view, whether a hirer’s failure to act or 

affirmative act creates a workplace hazard, the rule is the same: “Once an 

independent contractor becomes aware of a hazard on the premises, ‘the 

landowner/hirer delegates the responsibility of employee safety to the contractor’ 

and ‘a hirer has no duty to act to protect the employee when the contractor fails in 

that task . . . .’ [Citation.]” (Gonzalez, supra, 12 Cal.5th at p. 44.) The Gonzalez

court, in describing this rule, never suggested a more searching analysis into the 

precise cause of the hazard—whether from a failure to act or an affirmative act—

was necessary. Nor did the Sandoval court when it said, “A hirer might be 

responsible for the presence of a hazard and even convey an expectation that the 

contractor perform its work without eliminating that hazard altogether, and yet 

leave the contractor ample freedom to accommodate that hazard effectively in 

whatever manner the contractor sees fit.” (Sandoval, supra, 12 Cal.5th at p. 276.) 

A contrary rule that premises liability on whether the hirer’s failure to act or 

affirmative act created the workplace hazard would add an inappropriate 

qualification to these holdings.

A contrary rule, moreover, would also undermine one of the principles 

underlying the Privette doctrine. As the Sandoval court explained, the Privette

doctrine is “rooted” in part on “society’s need for clear rules about who’s 

responsible for avoiding harms to workers when contractors are hired.” 

(Sandoval, supra, 12 Cal.5th at p. 264.) But “society’s need for clear rules about 

who’s responsible” would be undermined if it hinged responsibility on the precise 

cause of the hazard. A contractor, for instance, should not second-guess its 

responsibility to address a workplace hazard simply because it believes the hirer’s 

affirmative act, rather than the hirer’s passive act, led to the hazard’s existence. It 

should instead, once aware of the hazard, simply adhere to the same clear rule in 

both circumstances—take whatever precautions are necessary to protect its 

workers from the hazard. This is, in our reading, the clear teaching of our 

Supreme Court’s decisions in Gonzalez and earlier cases. (See Gonzalez, supra, 

12 Cal.5th at p. 44 [“once the contractor becomes aware of a concealed hazard’s 

existence, it becomes the contractor’s responsibility to take whatever precautions 

are necessary to protect itself and its workers from the hazard”].) 

McCullar also contends Gonzalez is distinguishable for another reason. He 

argues that when he asked SMC about the ice—asking, “ ‘[W]hat are we going to 

do about the ice situation?’ ”—he conveyed the message that “he could not safely 
3

perform the work of laying pipes . . . and that he had no way of clearing the ice.” 

He then suggests the plaintiff in Gonzalez did not convey a similar type of 

message when he informed the landowner’s housekeeper “that the roof was in a 

dangerous condition and needed to be repaired” (Gonzalez, supra, 12 Cal.5th at 

p. 40), since he afterward continued to work on the roof without further raising the 

issue. But in our view, McCullar attributes too much to his question about the ice. 

Although McCullar fairly conveyed the message that he preferred SMC to deal 

with the ice, we find it unreasonable to say that he also conveyed the message that 

“he could not safely perform the work of laying pipes . . . and that he had no way 

of clearing the ice.”1

1

In his petition for rehearing, McCullar also contends we omitted key facts, 

including, among other facts, SMC’s authority to resolve disputes over safety 

issues and SMC’s president’s statement that he expected his superintendent to stop 

any unsafe practices, to remove ice onsite, and to stop work in icy areas. But in 

his initial briefing, McCullar never contended these facts showed that SMC 

negligently exercised its retained authority over the contracted work in a manner 

that affirmatively contributed to his injuries. Nor, in any event, do these facts 

support that conclusion. Although SMC might have had authority to resolve 

safety disputes, to remove ice, and to stop work, that only shows that SMC could 

have exercised authority over the work, not that it actually did.

There is no change in the judgment. Appellant’s petition for rehearing is denied.

FOR THE COURT:

/s/

HOCH, Acting P. J.

 /s/

RENNER, J.

 /s/

EARL, J.
1

Filed 8/29/22 Certified for Publication 9/13/22 (order attached) (unmodified opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

TOMMY RAY MCCULLAR et al.,

Plaintiffs and Appellants,

v.

SMC CONTRACTING, INC.,

Defendant and Respondent.

C093295

(Super. Ct. No. SC20160049)

Under California law, a strong presumption exists that a hirer of an independent 

contractor delegates to the contractor all responsibility for workplace safety. This is 

known as the Privette doctrine based on the California Supreme Court decision that first

announced this principle. (See generally Privette v. Superior Court (1993) 5 Cal.4th 

689.)

In this case, SMC Contracting, Inc. (SMC) hired Tyco Simplex Grinnell, Inc.

(Tyco) to install an automatic fire sprinkler system for a development in South Lake 

Tahoe. On one date during installation, a Tyco employee, Tommy Ray McCullar, arrived 
2

at work and found the floor covered in ice. While trying to use a ladder on the ice, 

McCullar slipped and suffered injuries. 

McCullar later sued SMC based on these events. But the trial court, relying on the 

Privette doctrine, granted summary judgment in SMC’s favor. Challenging this decision 

on appeal, McCullar’s contends the Privette doctrine does not protect SMC because SMC 

retained control over Tyco’s work and negligently exercised this control in a way that 

affirmatively contributed to his injuries. That is so, he reasons, because SMC caused the 

ice to form on the floor and then told him to go back to work after he notified it about the 

ice. Based on the Privette doctrine, and because McCullar fails to raise a triable issue of 

material fact, we affirm.

BACKGROUND

I. Factual Background

“Because this case comes before us after the trial court’s grant of summary 

judgment, we apply these well-established rules: ‘ “ ‘[W]e take the facts from the record 

that was before the trial court when it ruled on that motion,’ ” ’ and we ‘ “ ‘ “ ‘review the 

trial court’s decision de novo, considering all the evidence set forth in the moving and

opposing papers except that to which objections were made and sustained.’ ” ’ ” ’

[Citation.] We also ‘ “ ‘liberally construe the evidence in support of the party opposing 

summary judgment and resolve doubts concerning the evidence in favor of that party.’ ” ’ 

[Citation.]” (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 521 (Tverberg 

I).)

SMC was the general contractor for a project known as the Chateau at the Village 

in South Lake Tahoe, California—a region SMC’s owner described as part of “the snow 

country” with occasionally icy conditions. Tyco was one of its subcontractors and was 

charged with installing an automatic fire sprinkler system for the project. Under the 

parties’ agreement, Tyco agreed to “immediately correct any and all unsafe acts or 

conditions that are brought to its attention” and to “comply with all specific safety 
3

requirements promulgated by any governmental authority, including without limitation, 

the requirements of the applicable state and federal Occupational Safety Health Act . . . .” 

Tyco also agreed to “conform to the safety policy of [SMC].” SMC’s safety policy 

stated, among other things, that “[s]ubcontractor supervisory personnel will review each 

work area prior to commencing work” and eliminate “[a]ny [s]afety hazards . . . prior to 

commencing work.” The policy added that subcontractors must provide a safety 

orientation for their employees, which must include the following instruction: “Don’t 

work unsafely or in unsafe environment. Tell foreman.” 

McCullar worked for Tyco on the project. On one date during the sprinkler 

installation, he arrived at work to find the floor covered in ice. McCullar attributed the 

ice to SMC’s work the night before. SMC had ordered heaters turned on overnight inside 

one of the project buildings to help dry a fireproofing coating. According to McCullar, 

the heaters melted the snow on the roof, the melted snow dripped onto the floor through 

openings in the roof where air conditioning units were to be installed, and the water on 

the floor then froze into ice overnight when the temperature fell below freezing. 

On seeing the ice, McCullar asked SMC’s superintendent what are “we . . . going 

to do about this ice issue”? But rather than answer the question, the superintendent said 

that SMC “ha[d] to have the heaters on” to dry the fireproofing coating on the building’s

steel beams. McCullar responded, “ ‘Well, that’s fine, but what are we going to do about 

the ice situation?’ ” “And at that point,” according to McCullar, the superintendent “told 

me to go back to work and he turned around and walked off.” Shortly before talking to 

SMC’s superintendent, McCullar also asked Tyco’s field superintendent “what he was 

going to do about the issue we have with safety of all the ice on the floor.” But Tyco’s 

field superintendent said only, “ ‘What can I tell you, Tom. Get the job done.’ ”

McCullar afterward began to work on the ice using a ladder. Sometime later, he 

fell after the ladder slid on the ice and suffered a shoulder injury that eventually required 

surgery.
4

II. Procedural Background

McCullar and his wife (collectively, McCullar) sued SMC, alleging five causes of 

action. First, McCullar alleged that SMC was liable on a negligence theory because it 

“negligently allowed ice to exist on the interior floor of the” project and violated its duty 

to provide “a safe work place for all of its employees and [subcontractors].” Second, he

alleged that SMC was liable on a negligence per se theory because, in violation of a work 

safety regulation, it failed to maintain work floors in a safe, nonslippery condition. Third, 

based on the same work safety regulation, he alleged that SMC violated a nondelegable 

duty to maintain work floors in a safe condition. Fourth, he alleged that SMC violated its 

legal obligation to maintain a safe workplace. And lastly, raising a loss of consortium 

claim, he alleged that SMC deprived his wife “of his services, love, affection, comfort, 

care and society.”

SMC later moved for summary judgment. It argued that SMC delegated its duty 

to ensure a safe workplace to Tyco and so McCullar needed to look to Tyco, not SMC, 

for his recovery. It reasoned that under the California Supreme Court’s decisions in 

Privette and later cases, a hirer of an independent contractor implicitly delegates to the 

contractor any tort law duty it owes to the contractor’s employees to ensure the safety of 

the workplace. It added that the parties’ contract in this case explicitly delegated to Tyco 

the duty to provide a safe workplace.

McCullar opposed the motion. Although he acknowledged that a hirer of a 

contractor could delegate to the contractor the responsibility to ensure a safe workplace, 

he contended a hirer could still be liable to a contractor’s employee if its own negligence 

affirmatively contributed to the employee’s injuries. He then argued that SMC 

affirmatively contributed to his injuries when it caused ice to form on the floor and then 

instructed him to return to work without solving the problem. Considering these facts, 

McCullar contended “SMC negligently exercised its retained control over project safety 
5

and affirmatively contributed to [his] injuries.” He further contended SMC failed to 

comply with a workplace safety regulation covering slippery surfaces at worksites.

The trial court granted SMC’s motion. Under Privette and similar cases, the court 

wrote, a presumption exists that the hirer of an independent contractor delegates to the 

contractor its duty to provide a safe workplace for the contractor’s employees. 

Considering this presumption and SMC’s offered evidence, the court found that SMC 

made a prima facie showing that McCullar’s claims failed as a matter of law. The court 

also found that McCullar failed to rebut this presumption. Although the court 

acknowledged two exceptions to this presumption, including one where the hirer’s 

exercise of its retained control affirmatively contributes to an employee’s injury, it found 

McCullar “offer[ed] insufficient evidence to raise a triable issue of fact that SMC 

contractually or by conduct retained control over safety conditions.” It added that even 

assuming SMC retained control over safety conditions, McCullar offered “[n]o evidence 

. . . tending to show that SMC actually exercised control over McCullar’s worksite.” 

Lastly, turning to McCullar’s claim that SMC failed to comply with a regulation covering 

slippery surfaces at worksites, the court found McCullar also failed to meet his “burden 

of showing a triable issue of fact exists that SMC owed McCullar any statutory duties 

that were retained and not delegated to Tyco.” The court afterward entered judgment in 

SMC’s favor.

McCullar timely appealed.

DISCUSSION

I. Background Law

“The Privette doctrine holds that a hirer generally delegates to an independent 

contractor all responsibility for workplace safety and is not liable for injuries sustained by 

the contractor or its workers while on the job.” (Gonzalez v. Mathis (2021) 12 Cal.5th 

29, 40 (Gonzalez).) Our Supreme Court has found this doctrine appropriate because a 

hirer typically has no right to control the manner of a contractor’s work and hires a 
6

contractor precisely because of the contractor’s greater ability to perform the work safely 

and successfully. (Id. at pp. 45-46.) The court has also found this doctrine promotes 

workplace safety through “clear rules about who’s responsible for avoiding harms to 

workers when contractors are hired.” (Sandoval v. Qualcomm Incorporated (2021) 12 

Cal.5th 256, 264 (Sandoval).) Because of these types of considerations, the court has 

“endorsed a ‘strong policy’ of presuming that a hirer delegates all control over the 

contracted work, and with it all concomitant tort duties, by entrusting work to a 

contractor.” (Id. at p. 270.)

But although this presumption in favor of a hirer’s nonliability is strong, it is not 

irrebuttable. In the years following Privette, the court has “identified two limited 

circumstances in which the presumption is overcome.” (Gonzalez, supra, 12 Cal.5th at 

p. 38.) First, in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 

(Hooker), the court “held that a hirer may be liable when it retains control over any part 

of the independent contractor’s work and negligently exercises that retained control in a 

manner that affirmatively contributes to the worker’s injury.” (Gonzalez, at p. 38.) 

Second, in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman), the court “held 

that a landowner who hires an independent contractor may be liable if the landowner 

knew, or should have known, of a concealed hazard on the property that the contractor 

did not know of and could not have reasonably discovered, and the landowner failed to 

warn the contractor of the hazard.” (Gonzalez, at p. 38.) 

Our focus in this case is on the first of these two exceptions, often called the 

Hooker exception to Privette. The exception includes “three key concepts: retained 

control, actual exercise, and affirmative contribution.” (Sandoval, supra, 12 Cal.5th at 

p. 274.) “A hirer ‘retains control’ where it retains a sufficient degree of authority over 

the manner of performance of the work entrusted to the contractor.” (Ibid.) Our

Supreme Court has emphasized that “[a] hirer might be responsible for the presence of a 

hazard and even convey an expectation that the contractor perform its work without 
7

eliminating that hazard altogether, and yet leave the contractor ample freedom to 

accommodate that hazard effectively in whatever manner the contractor sees fit.

[Citation.] In such instance, the hirer does not necessarily retain a sufficient degree of 

control over the contractor’s manner of performing the contracted work to constitute 

‘retained control.’ ” (Id. at p. 276.)

“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.’ [Citations.] In other words, the hirer must 

exert some influence over the manner in which the contracted work is performed.” 

(Sandoval, supra, 12 Cal.5th at p. 276.) “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” (ibid.), “such as by directing the manner or methods in 

which the contractor performs the work; interfering with the contractor’s decisions 

regarding the appropriate safety measures to adopt; requesting the contractor to use the 

hirer’s own defective equipment in performing the work; contractually prohibiting the 

contractor from implementing a necessary safety precaution; or reneging on a promise to 

remedy a known hazard” (Gonzalez, supra, 12 Cal.5th at p. 47; see also Hooker, supra,

27 Cal.4th at p. 209 [“ ‘The mere failure to exercise a power to compel the subcontractor 

to adopt safer procedures does not, without more, violate any duty owed to the 

plaintiff.’ ”]).

Lastly, “ ‘[a]ffirmative 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.” (Sandoval, supra, 12 Cal.5th at p. 277.) A hirer’s conduct 

satisfies the affirmative contribution requirement when “the hirer in some respect 

induced—not just failed to prevent—the contractor’s injury-causing conduct.” (Ibid.) 

“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 
8

contractor’s contribution (if any) to the injury.” (Ibid.) That would be true, for instance, 

if “the hirer promises to undertake a particular safety measure, [but] then . . . 

negligent[ly] fail[s] to do so.” (Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)

The Hooker exception to Privette is triggered only when all three of these 

concepts—retained control, actual exercise, and affirmative contribution—are satisfied. 

Our Supreme Court in Sandoval summed up these three concepts this way: “A hirer’s 

mere authority to prevent or correct a contractor’s unsafe practices (retained control) does 

not, without more, limit the contractor’s delegated control over the work. But to the 

extent that the hirer exerts influence over the contracted work such that the contractor is 

not entirely free to perform the work in the contractor’s own manner (actual exercise), the 

hirer does limit the contractor’s delegated control. Still, we impose a duty only where 

that limitation itself contributed to the worker’s injury (affirmative contribution), rather 

than where that limitation incidentally created an opportunity for the hirer to prevent the 

contractor’s injury-causing conduct.” (Sandoval, supra, 12 Cal.5th at p. 278.) 

The Sandoval court found that “[i]mposing this duty on the hirer where Hooker’s 

test is satisfied is consistent with the strong policy of delegation that undergirds the 

Privette doctrine.” (Sandoval, supra, 12 Cal.5th at p. 278.) It added that “[i]mposing a 

duty on the hirer under these limited circumstances . . . furthers at least three of the major 

tort law goals underlying the policy of delegation [it] detailed in [its] past cases applying

Privette.” (Id. at p. 279.) “First, Hooker’s rule should tend to improve worksite safety, 

because it generally discourages hirer involvement in contracted work. This is preferable 

because we presume the contractor is best situated to prevent contract worker injury 

given its relative proximity to the work, superior expertise and resources, ability to 

internalize costs, and relationship with the workers. [Citations.] At the same time, the 

rule incentivizes the hirer to use reasonable care when the hirer does get involved.” 

(Ibid.) “Second, the rule distributes liability equitably as between the hirer and the 

contractor. Where the hirer’s contribution to an injury is merely derivative of the 
9

contractor’s, it seems unfair to subject the hirer to tort liability while workers’ 

compensation shields the contractor—not so where the hirer induces or independently 

contributes to the injury.” (Ibid.) “Finally, Hooker’s rule tends to strike an appropriate 

balance between victim compensation and socially undesirable hirer burdens, avoiding a 

tort scheme that might lead hirers to impose inappropriate safety requirements [citation]

or avoid assigning dangerous jobs to those with the necessary expertise [citation].” 

(Ibid.) 

II. McCullar’s Negligence Claim

In this case, starting with his negligence claim and invoking the Hooker exception, 

McCullar contends triable issues of fact exist as to whether “SMC retained control over 

the work and exercised such control in a manner that affirmatively contributed to [his]

injuries.” He first argues SMC retained control over Tyco’s work principally based on its 

authority to stop any unsafe practice, its responsibility to remove snow to allow access to 

the project, and its status as a general contractor. He then claims “SMC exercised its 

retained authority and affirmatively contributed to [his] injuries” in two ways: first, when 

it “ordered the heaters to be run all night, causing snow to melt through the roof and ice 

to form on the floor”; and second, when it told him to go back to work after he mentioned

the ice, even though he “had no authority to alter the work area and had no way to get rid 

of the ice in his area.” Although we accept, for purposes here, that SMC retained control 

over Tyco’s work, we are not persuaded that SMC negligently exercised its retained 

authority in a manner that affirmatively contributed to McCullar’s injuries. 

We start with McCullar’s argument concerning SMC’s running of the heaters. 

Although we accept that SMC’s conduct caused ice to form and required Tyco to take 

extra safety precautions to account for the ice, we conclude these facts are insufficient to 

show that SMC’s exercise of its retained control affirmatively contributed to McCullar’s 

injuries. As McCullar acknowledges, he was aware of the ice before he suffered his 

injuries. And as our Supreme Court has explained, “[o]nce an independent contractor 
10

becomes aware of a hazard on the premises, ‘the landowner/hirer delegates the 

responsibility of employee safety to the contractor’ and ‘a hirer has no duty to act to 

protect the employee when the contractor fails in that task . . . .’ [Citation.]” (Gonzalez, 

supra, 12 Cal.5th at p. 45.) That is because the hirer generally has no right to control the 

manner of the contractor’s work and “the law assumes that the independent contractor is 

typically better positioned to determine whether and how open and obvious safety 

hazards on the worksite might be addressed in performing the work.” (Id. at p. 38; see 

also Sandoval, supra, 12 Cal.5th at p. 264 [the presumed delegation of responsibility “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”].) 

This presumed delegation of responsibility, moreover, is not overcome simply 

because the hirer negligently created the hazardous condition. As our Supreme Court 

explained in Sandoval, “[a] hirer might be responsible for the presence of a hazard and 

even convey an expectation that the contractor perform its work without eliminating that 

hazard altogether, and yet leave the contractor ample freedom to accommodate that 

hazard effectively in whatever manner the contractor sees fit.” (Sandoval, supra, 12 

Cal.5th at p. 276.) Consistent with this principle, even when the hirer of a contractor 

negligently creates a known workplace hazard, the court has concluded that the 

contractor still retains the responsibility for assessing whether its workers can perform 

their work safely. (See Gonzalez, supra, 12 Cal.5th at pp. 40, 54 [a contractor fell off a 

roof that was slippery because of the landowner’s lack of maintenance; it was nonetheless 

still the contractor’s duty, not the owner’s duty, to assess whether he and his workers 

could perform their work safely “despite the existence of the known hazardous conditions 

on the roof”]; SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594-595, 601 

(SeaBright) [after an airline hired a contractor to maintain and repair its luggage 

conveyor, a contractor employee suffered an injury that would have been prevented had 
11

the airline installed “certain safety guards [on the conveyor] required by applicable 

regulations”; it was nonetheless still the contractor’s “duty to identify the absence of the 

safety guards . . . and to take reasonable steps to address that hazard”]; see also 

Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1082, 1090 [a 

contractor’s employee fell to his death from a building after attempting, unsuccessfully, 

to support his weight with a visibly inadequate roof anchor; even assuming the building 

owner failed to equip its commercial building with the roof anchors required by law, it 

nonetheless was not liable because it had delegated to the contractor “its duty to provide a 

safe workplace for [the contractor’s] employees”].)

On facts like those here, then, it is the contractor’s responsibility, not the hirer’s 

responsibility, to take the necessary precautions to protect its employees from a known 

workplace hazard. And should the contractor fail to take the necessary precautions, as 

Tyco did in this case when it simply told McCullar to “ ‘[g]et the job done’ ” despite the 

ice, its employees cannot fault the hirer for the contractor’s own failure. (See Kinsman, 

supra, 37 Cal.4th at p. 674 [“Because the landowner/hirer delegates the responsibility of 

employee safety to the contractor, the teaching of the Privette line of cases is that a hirer 

has no duty to act to protect the employee when the contractor fails in that task and 

therefore no liability; such liability would essentially be derivative and vicarious.”]; 

Tverberg I, supra, 49 Cal.4th at p. 522 [“Having assumed responsibility for workplace 

safety, an independent contractor may not hold a hiring party vicariously liable for 

injuries resulting from the contractor’s own failure to effectively guard against risks 

inherent in the contracted work.” (Italics omitted.)].) 

McCullar’s claim that SMC directed him to go back to work after he disclosed the 

ice does not alter this conclusion. According to McCullar, he asked SMC’s 

superintendent what are “we . . . going to do about this ice issue”? But rather than 

answer the question, the superintendent said that SMC “ha[d] to have the heaters on” to 

dry the fireproofing coating on the structure’s steel beams. Returning to his question, 
12

McCullar said, “ ‘Well, that’s fine, but what are we going to do about the ice situation?’ ” 

“And at that point,” according to McCullar, the superintendent “told me to go back to 

work and he turned around and walked off.” McCullar contends these facts show “he 

was directed to go back to work and do his job,” even though he “had no authority to 

alter the work area and had no way to get rid of the ice in his area.” 

But SMC’s general direction “to go back to work” did not interfere with or 

otherwise impact McCullar’s decisions on how to safely perform his work. SMC did not, 

for example, direct McCullar to place a ladder on the ice and then attempt to climb it. 

Nor did SMC prohibit McCullar from removing the ice, as McCullar suggests. McCullar 

suggests he could not remove the ice because, according to the testimony of SMC’s 

owner, a subcontractor could not “alter the state of [a] work site, outside of what is their 

work,” unless they first checked with SMC. But no reasonable person, in our view, 

would understand spilled water and resulting ice to be part of “the state of [a] work site.” 

McCullar, for his part, never even alleges that he held this view. The parties’ agreement, 

moreover, specifically authorized (and in fact, required) Tyco to “immediately correct 

any and all unsafe acts or conditions that are brought to its attention.” It also required 

Tyco to comply with SMC’s safety policy, which obligated “[s]ubcontractor supervisory 

personnel [to] review each work area prior to commencing work” and eliminate “[a]ny 

[s]afety hazards . . . prior to commencing work.” 

Contrary to McCullar’s claims, then, we conclude that Tyco not only had the 

authority to remove the ice, whether by chipping the ice, melting the ice, or through some 

other means; it also, as discussed, had the responsibility to take the necessary precautions 

to protect its employees from any hazard posed by the ice. And although Tyco did not

exercise this responsibility to prevent McCullar’s injury, McCullar cannot hold SMC 

responsible for Tyco’s own failure. (See Sandoval, supra, 12 Cal.5th at p. 275 [“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 
13

contracted work in the contractor’s own manner”].) Nor can he hold SMC liable on the 

theory that SMC knew of the unsafe condition and so should have remedied it. 

(Gonzalez, supra, 12 Cal.5th at p. 46 [the Hooker exception to Privette is not met solely 

because a “hirer knows of the danger and has the authority and ability to remedy it”].)

Our Supreme Court’s recent decision in Gonzalez is consistent with our 

conclusion. In that case, which was also resolved on summary judgment, a landowner 

hired a company to clean a skylight on the landowner’s roof on an ongoing basis. 

(Gonzalez, supra, 12 Cal.5th at pp. 39-40.) On one occasion, the company’s owner, 

Gonzalez, informed the landowner’s housekeeper “that the roof was in a dangerous 

condition and needed to be repaired.” But the landowner, it appears, did nothing in 

response. (Id. at p. 40.) Several months later, “at the direction of [the landowner’s] 

housekeeper, Gonzalez went up on to the roof to tell his employees to use less water 

while cleaning the skylight because water was leaking into the house. While Gonzalez 

was walking . . . [on] the roof on his way back to the ladder, he slipped and fell to the 

ground, sustaining serious injuries.” (Id. at p. 39.) Gonzalez later sued the landowner, 

alleging, as relevant here, that he should “be held liable under the well-established 

Hooker exception to Privette.” (Id. at p. 55.) 

But our Supreme Court rejected the claim. Although Gonzalez contended the 

landowner’s “lack of maintenance caused the roof to have a very slippery surface,” and 

although he testified that he informed the landowner’s housekeeper about the roof’s poor 

condition, the court nonetheless concluded that Gonzalez, not the landowner, had a duty 

“to assess whether he and his workers could [perform their work] safely despite the 

existence of the known hazardous conditions on the roof.” (Gonzalez, supra, 12 Cal.5th 

at pp. 40, 54.) The court added that “[i]t would be contrary to the principles underlying 

Privette to hold that [the landowner] also had a duty to determine whether the work could 

be performed safely absent remediation of a known hazard.” (Id. at p. 54.) And although 

the landowner’s “housekeeper directed Gonzalez to go on to the roof on the day of the 
14

accident to tell his workers to use less water in cleaning the skylight,” the court 

concluded this too did not make the landowner potentially liable. (Id. at p. 56.) It 

explained that “the general direction to ‘go on to the roof’ did not interfere with or 

otherwise impact Gonzalez’s decisions regarding how to safely perform the work or 

provide a safe workplace for his employees.” (Ibid.) It reasoned that the “housekeeper 

did not, for example, direct Gonzalez to walk [on a particular area on the roof] or 

otherwise influence his decisions regarding whether and how he might safely cross over 

the roof in order to reach his workers.” (Ibid.) Under these facts, the court concluded, 

the landowner was “not liable under our well-established precedent because he did not 

exercise any retained control over any part of Gonzalez’s work in a manner that 

affirmatively contributed to Gonzalez’s injury.” (Id. at p. 57.) Similar principles doom 

McCullar’s negligence claim here. 

Although McCullar attempts to portray Gonzalez in a light more favorable to his 

position, his effort falls short. At the close of its opinion, the court wrote: “We do not 

decide whether there may be situations, not presented here, in which a hirer’s response to 

a contractor’s notification that the work cannot be performed safely due to hazardous 

conditions on the worksite might give rise to liability. For example, we do not decide 

whether a hirer’s conduct that unduly coerces or pressures a contractor to continue the 

work even after being notified that the work could not be performed safely due to a 

premises hazard would fall under the Hooker exception to Privette.” (Gonzalez, supra,

12 Cal.5th at p. 56, italics omitted.) Focusing on this language, McCullar claims “[t]he 

present case involves the situation expressly left open in Gonzale[z]—where a hirer has 

unduly coerced or pressured a contractor to continue to work in unsafe conditions, after 

being notified that work cannot be performed safely due to a hazard on the premises—in 

this case, a hazard created by the hirer.”

But McCullar’s reliance on Gonzalez is misplaced. Although, as McCullar notes,

the Gonzalez court said “a hirer’s response to a contractor’s notification that the work 
15

cannot be performed safely due to hazardous conditions on the worksite might give rise 

to liability” (Gonzalez, supra, 12 Cal.5th at p. 56, italics omitted), McCullar does not 

claim that he informed SMC “that the work c[ould not] be performed safely due to 

hazardous conditions on the worksite.” He instead asserts that he sought direction on 

how to deal with the hazardous condition, asking, “ ‘[W]hat are we going to do about the 

ice situation?’ ” SMC declined to provide this advice, telling him only to “go back to 

work.” Again, SMC did not instruct McCullar to attempt to use a ladder on the ice. Nor 

did it prohibit McCullar from attempting to remove the ice, attempting to cover it to 

create a nonslippery surface, or attempting to work in an area without ice. It instead 

simply left him to his own devices in dealing with the ice, which is insufficient, as a 

matter of law, to establish liability under our Supreme Court’s precedents. (See 

Sandoval, supra, 12 Cal.5th at p. 281 [hirer did not exercise retained control when 

contractor “remained entirely free to implement (or not) [a number of safety] precautions 

in its own manner, issues over which [hirer] exerted no influence”].)

Although McCullar also claims the Court of Appeal’s reasoning in Tverberg v. 

Fillner Constr. (2012) 202 Cal.App.4th 1439 (Tverberg II) favors his position, this claim

too falls short. That case involved a “project requir[ing] construction of a metal canopy 

over some fuel-pumping units.” (Id. at p. 1442.) One contractor, Tverberg, led a crew 

charged with constructing the canopy, and another contractor was charged with 

constructing eight “concrete posts intended to prevent vehicles from colliding with the 

fuel dispensers.” (Ibid.) Before Tverberg’s first day, the other contractor dug eight large 

holes for the concrete posts, which “were next to the area where Tverberg was to erect 

the metal canopy.” (Id. at pp. 1442-1443.) Tverberg asked the general contractor for the 

project “to cover the holes with large metal plates that were onsite, but [the general 

contractor] said that [it] did not have the necessary equipment to do so that day.” (Id. at 

p. 1443.) The next day, Tververg repeated his request, but the general contractor failed to 
16

act on it. “A short while later, as Tverberg walked from his truck toward the canopy, he 

fell into a . . . hole and was injured.” (Ibid.) 

Tverberg sued the general contractor, alleging, as relevant here, that it was liable 

under the Hooker exception to Privette. (Tverberg II, supra, 202 Cal.App.4th at

pp. 1447-1448.) Although the trial court later dismissed his claims on summary 

judgment, the Court of Appeal reversed, concluding three triable issues of fact precluded 

summary judgment. First, it found “that by ordering these holes to be created and 

requiring Tverberg to conduct unrelated work near them, [the general contractor’s] 

conduct may have constituted a negligent exercise of its retained control in a manner that 

could have made an affirmative contribution to Tverberg’s injury.” (Id. at p. 1448.) 

Second, because the general contractor determined “that there was no need to cover or 

barricade the . . . holes,” the court found “an inference that [the general contractor] 

affirmatively assumed the responsibility for the safety of the workers near the . . . holes, 

and discharged that responsibility in a negligent manner, resulting in injury.” (Ibid.) 

And third, because the general contractor indicated it intended to cover the holes when it 

had the necessary equipment, the court found “a reasonable jury [could] infer that [the 

general contractor] agreed to cover the holes and then failed to meet this responsibility.” 

(Ibid.) 

According to McCullar, Tverberg II is “analogous.” Focusing on the first of the 

court’s three reasons for finding a triable issue of fact, McCullar contends Tverberg II is 

similar because SMC created a hazardous condition and then, after learning of it, 

nonetheless told him to go back to work without providing direction on how to address

the hazard. But to the extent the Tverberg II court believed the Hooker exception could 

apply on these types of facts, we decline to follow it. The Tverberg II court, again, found 

the general contractor might be liable under Hooker because it created a workplace 

hazard (namely, holes in the ground) and then “requir[ed] Tverberg to conduct unrelated 

work near [the hazard].” (Tverberg II, supra, 202 Cal.App.4th at p. 1448.) But in 
17

Gonzalez, our Supreme Court reached the opposite conclusion on facts that were not too 

different. Similar to the general contractor in Tverberg II, the hirer in Gonzalez was 

responsible for the presence of a workplace hazard (namely, a slippery roof) and asked 

the contractor to perform unrelated work on the roof. (Gonzalez, supra, 12 Cal.5th at 

pp. 39-40.) Yet the court still, at the summary judgment stage, found the hirer was not 

liable when the contractor fell from the roof and suffered injuries. (Id. at pp. 56-57.) 

Following our Supreme Court’s reasoning, rather than the Court of Appeal’s reasoning in 

Tverberg II, we apply similar logic to reject McCullar’s negligence claim here.

In sum, under our Supreme Court’s Privette line of cases, we conclude SMC 

delegated all responsibility for workplace safety to Tyco. This delegation included the

responsibility to ensure that Tyco’s workers would be able to perform their work safely 

despite the known presence of ice that increased the risk of falling. And this delegation 

included this responsibility even though SMC “might [have been] responsible for the 

presence of [the] hazard.” (Sandoval, supra, 12 Cal.5th at p. 276 [“A hirer might be 

responsible for the presence of a hazard . . . and yet leave the contractor ample freedom to 

accommodate that hazard effectively in whatever manner the contractor sees fit.”].) 

Under the undisputed material facts in this case, we conclude that SMC is not liable 

under our Supreme Court’s “well-established precedent because [it] did not exercise any 

retained control over any part of [Tyco’s] work in a manner that affirmatively contributed 

to [McCullar’s] injury.” (Gonzalez, supra, 12 Cal.5th at p. 57.) 

III. McCullar’s Negligence Per Se and Loss of Consortium Claims

McCullar’s remaining claims on appeal fail for similar reasons. He first claims the 

trial court wrongly found his negligence per se claim failed as a matter of law. In his 

view, “SMC may be held liable to McCullar for negligence per se based on its violation 

of OSHA Rule 3273”—a rule that requires slippery floors to “be protected against 

slipping by using mats, grates, cleats, or other methods which provide equivalent 

protection.” (Cal. Code Regs., tit. 8, § 3273, subd. (a); hereafter section 3273.) Although 
18

McCullar acknowledges that, in hiring an independent contractor, a hirer implicitly 

delegates to the contractor “any tort law duty [it] owes to the contractor’s employees to 

comply with applicable statutory or regulatory safety requirements” (SeaBright, supra, 52 

Cal.4th at p. 594, fn. omitted), he contends no such delegation occurred here. That is 

because, he argues, “evidence shows that SMC retained control over certain aspects of 

the Project including overall safety of the workplace, snow and ice removal, coordination 

with other contractors . . . and ordering the heaters to be run causing ice to form on the 

floor.”

We reject his claim. As factual support for his argument, McCullar cites to 

“Section II.B.,” which is the very section in which he makes his claim. But at most, the 

relevant record citations in “Section II.B.” show only that SMC’s conduct contributed to 

the formation of the ice. That alone, however, does not show that SMC retained a tort 

law duty to comply with section 3273. As discussed above, SMC presumptively 

delegated to Tyco any tort law duty it owed to Tyco’s employees to ensure the safety of 

the workplace. 

Nothing in section 3273 requires a different result, as our Supreme Court’s 

decision in SeaBright demonstrates. In that case, an airline owned and operated a 

luggage conveyor that “lacked certain safety guards required by applicable regulations.” 

(SeaBright, supra, 52 Cal.4th at p. 594.) It hired a contractor to maintain and repair the 

conveyor and, while inspecting the conveyor, one of the contractor’s employees suffered 

an injury that would have been prevented had the conveyor had the required safety 

guards. (Ibid.) The employee later sued the airline, alleging, similar to McCullar, “that 

Cal-OSHA[1]imposed on [the airline] a duty of care” that the airline violated. (Id. at 

p. 596.) But the court rejected the claim. It reasoned that the airline “presumptively 

1 The California Occupational Safety and Health Act of 1973. (Lab. Code, § 6300 

et seq.)
19

delegated to [the contractor] any tort law duty of care the airline had under Cal-OSHA 

and its regulations to ensure workplace safety for the benefit of [the contractor’s] 

employees,” “includ[ing] a duty to identify the absence of the safety guards required by 

Cal-OSHA regulations and to take reasonable steps to address that hazard.” (Id. at 

p. 601.) The same reasoning applies here: SMC “delegated to [Tyco] any tort law duty 

of care [it] had under Cal-OSHA and its regulations to ensure workplace safety for the 

benefit of [Tyco’s] employee,” including any duty to take precautions to address slippery 

surfaces. (Ibid.; see also Tverberg II, supra, 202 Cal.App.4th at p. 1445 [holding that the 

general contractor “delegated its obligation to comply with Cal-OSHA workplace 

regulations to Tverberg,” even though the general contractor’s conduct created the 

dangerous condition that led to Tverberg’s injury].)

Apart from focusing on SMC’s role in causing the ice, McCullar also, as noted, 

contends SMC retained a tort law duty to comply with section 3273 for other reasons—

namely, because “evidence shows that SMC retained control over certain aspects of the 

Project including overall safety of the workplace, snow and ice removal, [and] 

coordination with other contractors . . . .” But as mentioned, McCullar fails to supply 

citations to the record supporting these remaining contentions, which is reason enough to 

reject his argument. (Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must “[s]upport 

any reference to a matter in the record by a citation to the volume and page number of the 

record where the matter appears”]; Jumaane v. City of Los Angeles (2015) 241 

Cal.App.4th 1390, 1406 [courts “may disregard any claims when no reference [to the 

record] is furnished”].) We nonetheless acknowledge, as McCullar alleges, that the 

parties’ contract required SMC to remove snow to the extent necessary “to allow access 

to the project.” And although we accept that a failure to remove snow “to allow access to 

the project” could lead to the formation of ice in some circumstances, McCullar does not 

allege that SMC’s failure to remove snow “to allow access to the project” led to the 

formation of the ice in this case. 
20

McCullar next suggests the trial court wrongly rejected his negligence per se claim 

because “SMC’s failure to remove the ice and its order to [him] to continue with his work 

violated Labor Code section 6400.” But he raises this argument in a section purporting, 

according to its heading, to deal only with SMC’s alleged “violation of OSHA Rule 

3273.” McCullar needed to raise his distinct argument based on Labor Code section 

6400 “under a separate heading or subheading summarizing the point,” as required under 

California Rules of Court, rule 8.204(a)(1)(B). Because he failed to do so, we conclude

he forfeited this argument. (Opdyk v. California Horse Racing Bd. (1995) 34 

Cal.App.4th 1826, 1830, fn. 4.) In any event, as discussed already, we conclude SMC 

delegated to Tyco “any tort law duty [it] owe[d] to [Tyco’s] employees to comply with 

applicable statutory or regulatory safety requirements.” (SeaBright, supra, 52 Cal.4th at 

p. 594, fn. omitted.)

Lastly, McCullar contends we should reverse the trial court’s ruling on his wife’s 

loss of consortium cause of action if we reverse the trial court’s ruling on his negligence 

and negligence per se causes of action. But because we conclude McCullar failed to 

show reversal appropriate for his negligence causes of action, we have no ground for 

reversing his wife’s derivative cause of action for loss of consortium.
21

DISPOSITION

The judgment is affirmed. SMC is entitled to recover its costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(1), (2).)

 /s/

HOCH, Acting P. J.

We concur:

 /s/

RENNER, J.

 /s/

EARL, J.
1

Filed 9/13/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

TOMMY RAY MCCULLAR et al.,

Plaintiffs and Appellants,

v.

SMC CONTRACTING INCORPORATED,

Defendant and Respondent.

C093295

(Super. Ct. No. SC20160049)

ORDER CERTIFYING OPINION 

FOR PUBLICATION

[NO CHANGE IN JUDGMENT]

APPEAL from a judgment of the Superior Court of El Dorado County, Michael J. 

McLaughlin, Judge. Affirmed.

Law Office of Mark R. Swartz, Mark R. Swartz; and C. Athena Roussos for 

Plaintiffs and Appellants.

Ford, Walker, Haggerty & Behar and B. Eric Nelson for Defendant and 

Respondent.

THE COURT:

The opinion in the above-entitled matter filed on August 29, 2022, was not 

certified for publication in the Official Reports. For good cause it now appears that the 
2

opinion should be published in the Official Reports and it is so ordered.

FOR THE COURT:

/s/

HOCH, Acting P. J.

 /s/

RENNER, J.

 /s/

EARL, J.