*1 S091097.Jan. [No. 2002.] McKOWN, v.
BRIAN Plaintiff and Respondent, STORES, INC., WAL-MART Defendant and Appellant.
Counsel Strozier, Strozier, Tomlinson, & Snyder Maho & Clifford Snyder, Barry and Will Tomlinson for Snyder Defendant and Appellant.
Fred J. Hiestand for the Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Appellant.
Garza, Pacheco, Pacheco; Garza & John M. Law Offices of Robert H. Pourvali Robert H. for Plaintiff and Pourvali Respondent. Veen; Sturdevant; Unitt;
Ian William L. James C. Brian C. Dennis Herzog; Elber; Rosen; Firm, M. A. David Ams Law C. Smith and Morgan 222
Robert S. Ams for the Consumer of California as Amicus Curiae Attorneys on behalf of Plaintiff and Respondent.
Opinion
BROWN,
theThis isthird in a series of recent cases in which we have
J.
been called
to consider the reach of our decisions in Privette v.
upon
(1993)
Superior Court
review Oct. our should not be read as prejudged (Camargo, supra, questions.” those 25 Cal.4th at fn.
223 Background Factual and Procedural contractor hired the of an independent Brian McKown was Stores, in its (Wal-Mart) to install sound systems Inc. defendant Wal-Mart stores, Installation this accident occurred. the store in Chino where including the in installing wires and running speakers of the sound involved systems fork- the contractor use Wal-Mart’s that store ceilings. requested understood the work. The was request lifts whenever possible performing furnished to be a The forklift that Wal-Mart employees not directive. work, of a work consisting platform McKown had for overhead the For safety, extension to raise the with a four-foot along platform. forklift, the to the extension was to be chained platform supposed chain, However, one securing to or to the extension. chained the forklift forklift, After discussing the extension to the was Wal-Mart. provided the forklift without a chain advisability using securing platform forklift, decided to do so. While extension or the McKown and his colleague and McKown was on working his forklift colleague driving extension, hit a from disengaged platform, platform ceiling pipe, fell about 12 to to the floor with on it. 15 feet McKown
A found that unsafe equipment Wal-Mart was negligent providing and allocated 55 for the accident to McKown’s percent responsibility Wal-Mart, the manufacturer of the employer, percent percent affirmed the and 7 to McKown. The Court of Appeal equipment, that claim that Wal-Mart negligently sup- judgment, concluding “plaintiff’s *5 unsafe viable Privette and Toland.” We plied equipment notwithstanding review, and and limited the issue to be briefed granted argued question whether, Toland, under and an our decisions Privette employee of contractor is from a lawsuit the hirer against barred independent pursuing the contractor on the the hirer theory negligently provided independent issued our decision in unsafe After review was we granted, equipment. tort of and Privette and Toland to the Camargo, extending negligent hiring, the then counsel to file letter briefs exploring we requested supplemental an of an inde- of for the whether significance Camargo question of contractor an action for the tort of negligent pendent may bring provision the hirer of the contractor. The judgment unsafe against affirmed of Court of the trial court in favor which Appeal, judgment McKown, is affirmed. plaintiff
Discussion here is discussed The line of cases on the bearing question presented 198, case, Hooker, so that 27 Cal.4th in the to this companion discussion need not be here. To repeated length summarize: In Privette held we that an of a contractor not sue the may hirer of the contractor under either of the alternative versions of the risk peculiar doctrine set forth in sections 413 and 416 of the Under Restatement. section 413, a who hires an person contractor to do inherently danger- work, ous but who fails to in the contract or in some other provide manner that work, be taken to special avert the risks precautions of that can peculiar be liable if the contractor’s negligent the work causes performance injury 416, to others. Under section even if the hirer has for provided special otherwise, in the contract precautions the hirer can nevertheless be liable if the contractor fails to reasonable care exercise to take such precautions and the contractor’s of the work performance causes to In injury others. Toland, we rejected argument that Privette did not bar for direct recovery 413, under section but liability for vicarious under section 416. liability “[Pjeculiar risk is not a traditional liability direct for the theory liability risks created one’s own conduct: under both sections is in Liability essence ‘vicarious’ or ‘derivative’ in the sense that it derives from the ‘act or contractor, omission’ of the hired because it is the hired contractor who has caused the injury by use reasonable care in failing the work.” performing (Toland, Cal.4th at p. 1235,
In Camargo, supra, we held that an of a not sue the hirer of the may contractor under the negligent hiring set forth in section 411. theory Under section a hirer is liable for harm to third hirer’s physical caused persons failure exercise reasonable care to contractor to employ that will competent perform work done, involve a risk of harm unless it is physical or to skillfully carefully the hirer owes to third perform any duty In we persons. Camargo, rejected that argument Privette and Toland were on the distinguishable ground is, sense, that in a case negligent the hirer in a taxed his hiring being with own his negligence, direct. same could be said with making liability “[T]he to an action regard brought under the risk set forth in section theory 413. More under both sections 411 and importantly, hirer is ‘in essence “vicarious” or “derivative” in the sense that it derives *6 contractor, from the “act or omission” of the hired because isit the hired contractor who caused the to use reasonable care in injury by failing Therefore, (Toland, 265.) the work.’ 18 Cal.4th at in a performing supra, p. 411, under negligent hiring case the set forth in section as in theory just risk cases under the theories set forth in sections 413 and ‘it would be unfair to on the when the of liability hiring liability impose person contractor, the the one for the worker’s primarily responsible on-the-job (Toland, is limited to workers’ injuries, coverage.’ providing compensation 267.)” 1244.) 18 Cal.4th at (Camargo, supra, 25 Cal.4th p. Hooker, contractor is not that a hirer of an independent In we held the hirer retained contractor because liable to an of the merely employee worksite, liable to an at a but that a hirer is control over conditions safety a exercise of retained control of a contractor insofar as hirer’s employee tort liability contributed to the injuries. Imposing affirmatively employee’s conduct has contractor the hirer’s on a hirer of an when independent of the contractor’s is contributed to the affirmatively injuries Poland, Privette, consistent the rationale of our decisions and Cama with in in essence because the of the hirer in such a case is not rgo, liability or the sense that it from the act or omission of vicarious derivative in derives the a case the contractor. “To the the hirer in such contrary, liability hired (Hooker, is in a much sense of that direct term.” stronger at p. contractor, reason,
For the same when a hirer of an independent contractor, unsafe negligently furnishing affirmatively equipment contractor, hirer contributes to the of the the should be injury hirer’s liable to the for the the own consequences negligence. “The so as to insure its general to control the work supervisory right in accordance the terms of the contract does not satisfactory with completion make the hirer of the contractor liable for the latter’s negligent independent in acts the details of the work. An is not liable performing owner [Citation.] for from injuries defective unless he has them resulting supplied appliances or has the them or the materials out of are privilege selecting they which made he unless exercises active control over the men employed [citation] or the of the used contractor. operations equipment (McDonald v. Shell Oil Co. 44 Cal.2d 788-789 [Citation.]” [285 Privette, 902], added.) P.2d italics McDonald but as the Court of predates observed, that, here it serves to underline the fact “where the Appeal hiring contributes to the it party actively injury by defective supplying equipment, liable, is the not that of hiring own that renders it party’s negligence Indeed, contractor.” this case between clearly distinguished hirer, of the contractor and that of the allocating percent hirer, to the contractor and 23 Wal-Mart. responsibility Wal-Mart contends it should not be held liable for of the unsafe provision insist, because it and did not the contractor use merely requested, its forklift. To the The contractor had several contracts contrary: with stores, Wal-Mart for the installation of sound systems Wal-Mart, retailer, the world’s a customer the contractor was largest (The loath executive officer presumably displease. chief testified that Wal-Mart had that the contractor use Wal-Mart’s requested forklifts whenever a businessman I found that if *7 possible, “[a]s customer has a it’s best to do the customer legitimate request, usually what asks.”) safe, Wal-Mart believed the forklift it presumably provided well have believed that plaintiff may refusal use it would have generated ill will. The extra a forklift been renting would have expense chargeable Moreover, to Wal-Mart. a forklift renting would have entailed delaying installation for at least 24 hours for the reasons: The project following installation work was occur at when the store night was closed. Wal-Mart the forklift to the contractor’s around provided At that employees midnight. time of rental night, where substitute been yards, might have obtained, fault, were closed. Wal-Mart was not the one at Admittedly, only but then the verdict reflected that. jury’s verdict,
With to the it regard jury’s Wal-Mart contends should not be held liable for its because the found the negligence contractor was jury primarily “ (55 at fault. We have stated that ‘it would be unfair to percent) impose contractor, on the liability when the one hiring person liability for the worker’s primarily is limited to responsible on-the-job injuries, ” workers’ 25 Cal.4th providing compensation coverage.’ (Camargo, supra, However, at 18 Cal.4th at in this p. quoting p. case, Hooker, as well as in the hirer’s affirmative contribution to the eliminates the employee’s injuries unfairness where the imposing liability contractor is at fault. primarily that, Wal-Mart contends in a suit for of unsafe
Finally, negligent provision on a hirer for to an equipment, imposition liability injuries would violate of the workers’ spirit compensation rule and an exclusivity unwarranted windfall. For the give Hooker, Hooker, (See reasons stated in these contentions should be rejected. 213-214.) 27 Cal.4th at pp. of the Court of is affirmed. judgment Appeal J., Kennard, J., Baxter, J., Chin, J., Moreno, J., C. George, concurred case, WERDEGAR, I concurin the result. But as in the companion J. Hooker Department Transportation v. 198 [115 (Hooker), 38 P.3d I with the rule disagree majority’s Cal.Rptr.2d 1081] a hirer’s for its own to acts that limiting negligence “affirmatively ante, at contractor’s injury (maj. opn., contribute[]” 222). That limitation is an unwarranted intrusion into role jury’s facts and fault. finding allocating case, Stores, (Wal-Mart)
In the Inc. it should not argues present fault, finding be liable because the found it while *8 fault, at the contractor making party contractor 55 arguably percent conflict with the at is in obvious fault. Wal-Mart’s position “primarily” That one is deemed less responsible fault. party principles comparative another, is more than 50 or that the more party assigned than responsible fault, exonerate or immunize the less does not responsible is it that ultimate liability. majority reduce though may party’s party, its to but in own substituting therefore correct Wal-Mart’s reject position, ante, 225-226), the test at major- “affirmatively (maj. opn., pp. contribute[]” dissent the same error as As I in my makes Wal-Mart. ity essentially explain Hooker, 198, 215, deemed to have 27 Cal.4th that one is party omission, that another to an accident party contributed negligently act, affirmative does not exonerate or immu- contributed to the accident by omission, it well reduce that may nize the contributing by though party ultimate liability. party’s omission, or is
The distinction between act and activity passivity, fault, be to a but it does not likely important allocating properly a a a hirer be hable at all for role in court’s decision whether play may Hooker, at (See to a contractor’s pp. injuries employee. (dis. J.).) Just as the in this case majority accepts 216-217 opn. Werdegar, than allocation of fault even rather jury’s though “requested,” ante, “insist[ed],” 225), so that its forklift be used (maj. own opn., evidence) (if should it allocation of fault all the accept jury’s supported a rule of for hirers who contribute without imposing complete immunity omission an accident rather than affirmative act. by negligent