Lead Opinion
Opinion
Under the doctrine of peculiar risk, a person who hires an independent contractor to do inherently dangerous work can be held liable for tort damages when the contractor causes injury to others by negligently performing the work. The doctrine serves to ensure that innocent bystanders or neighboring landowners injured by the hired contractor’s negligence will have a source of compensation even if the contractor turns out to be insolvent. As we explained in Privette v. Superior Court (1993)
In Privette, supra,
The doctrine of peculiar risk, as relevant here, is described in two sections of the Restatement Second of Torts, section 413 and section 416. Under section 413, a person who hires an independent contractor to do inherently dangerous work, but who fails to provide in the contract or in some other manner that special precautions be taken to avert the peculiar risks of that work, can be liable if the contractor’s negligent performance of the work causes injury to others. Under section 416, even if the hiring person has provided for special precautions “in the contract or otherwise,” the hiring person can nevertheless be liable if the contractor fails “to exercise reasonable care to take such precautions” and the contractor’s performance of the work causes injury to others. There has been some disagreement in the trial courts and the Courts of Appeal whether Privette, supra,
I
In December 1992, Timothy Toland was working for framing subcontractor CLP Construction,
Toland sought recovery from his employer, CLP, under the Workers’ Compensation Act. He also sued Sunland, alleging that raising the wall created a peculiar risk of injury for which Sunland should have required subcontractor CLP to take special precautions.
Sunland moved for summary judgment in the trial court, asserting that Toland’s action was barred under this court’s then recent decision in Privette, supra,
The trial court entered summary judgment for Sunland. The Court of Appeal affirmed.
II
We begin with a brief overview of the doctrine of peculiar risk and the treatment of that doctrine in sections 413 and 416 of the Restatement Second of Torts. We then discuss our decision in Privette, supra,
A. The Doctrine of Peculiar Risk
Under the doctrine of peculiar risk, one injured by inherently dangerous work performed by a hired contractor can seek tort damages from the person who hired the contractor. (Privette, supra,
In determining the applicability of the doctrine of peculiar risk, a critical inquiry “is whether the work for which the contractor was hired involves a risk that is ‘peculiar to the work to be done,’ arising either from the nature or the location of the work and ‘ “against which a reasonable person would recognize the necessity of taking special precautions.” ’ (Aceves v. Regal Pale Brewing Co., [(1979)]
A peculiar risk need not be one that would inevitably arise in the course of the work. “ ‘It is sufficient that it is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of the work, or the particular method which the employer knows that the contractor will adopt.’ ” (Griesel v. Dart Industries, Inc. (1979)
Even when the work presents a special or peculiar risk of harm, the person who hired the contractor will not be liable for injury to others if the injury results from the contractor’s “collateral” or “casual” negligence. (Aceves v. Regal Pale Brewing, Co. (1979)
B. The Restatement Second of Torts
In the Restatement Second of Torts, sections 413 and 416, both of which set forth a theory of peculiar risk liability, appear in chapter 15. The chapter is entitled “Liability of an Employer of an Independent Contractor.” Its first section states the general rule that “the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.” (Rest.2d Torts, § 409, p. 370.) Sections 413 and 416 describe exceptions to this general rule of nonliability, as we discuss below.
1. Section 413
Section 413 of the Restatement Second of Torts is part of chapter 15’s topic 1, entitled “Harm Caused by Fault of Employers of Independent Contractors.” Section 413 bears the heading, “Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor.” It reads: “One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer [H] (a) fails to provide in the contract that the contractor shall take such precautions, or [H] (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.” (Rest.2d Torts, § 413.) Because section 413 rests the liability of the hiring person on his or her omission to provide for special precautions in the contract or in some other manner, it is sometimes described as a rule of “direct liability.” (See Aceves v. Regal Pale Brewing Co., supra,
2. Section 416
Section 416 of the Rеstatement Second of Torts appears in chapter 15’s topic 2, “Harm Caused by Negligence of a Carefully Selected Independent Contractor.” Section 416 is entitled, “Work Dangerous in Absence of Special Precautions.” It provides: “One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.” (Rest.2d Torts, § 416.) As the introductory note to this section explains, “the [hiring person] is under a duty which he is not free to delegate to the contractor.” (Rest.2d Torts, ch. 15, topic 2, Introductory Note, p. 394; see also Van Arsdale v. Hollinger (1968)
Because the hiring person’s liability under section 416 of the Restatement Second of
C. Our Decision in Privette v. Superior Court
As noted at the outset, in Privette, supra,
Privette pointed out that the policy reasons that support imposition of peculiar risk liability on the hiring person for injuries to neighboring property owners or innocent bystanders are absent when the person injured by the independent contractor’s negligence is an employee of the contractor. (Privette, supra,
Privette also noted that when the injured person is an employee of the independent contractor, a policy justification for imposing peculiar risk liability on the hiring person—namely the hiring person’s right to equitable indemnity from the independent contractor—is also absent. (Privette, supra,
We also observed in Privette that although the doctrine of peculiar risk is sometimes described as “a nondelegable duty” rule, it is in effect a form of vicarious liability. (Privette, supra,
D. Post-Privette Decisions by the Courts of Appeal
We filed our decision in Privette, supra,
In its decision, the Court of Appeal in Owens made these general observations about the doctrine of peculiar risk: “[Pjeculiar risk is not exclusively a form of vicarious liability. It may arise as a form of direct liability if the person who hires an independent contractor ‘(a) fails to provide in the contract that the contractor shall take such precautions, or ffl] (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.’ (Rest.2d Torts, § 413; see Aceves v. Regal Pale Brewing Co. (1979)
The Court of Appeal in Owens added: “It is plain from the discussion in Privette that the Supreme Court intended its holding to apply only in those situations where third
In this case, the Court of Appeal concluded that Owens v. GiannettaHeinrich Construction Co., supra, 23 Cal.App.4th 1662, was wrong in interpreting our decision in Privette, supra,
Ill
Plaintiff Toland asserts that Privette, supra,
Under section 413 of the Restatement Second of Torts, a person who hires a contractor to do inherently dangerous work but fails to provide “in the contract” or “in some other manner” for the taking of special precautions can be held liable when the contractor’s negligence causes injuries to others. Section 416 of the Restatement pertains to a hiring person who, unlike the hiring person in section 413, has provided for special precautions, but section 416 nevertheless holds the hiring person liable when the contractor’s failure to take such precautions causes harm to others. Thus, under either section 413 or section 416, the hiring person is subject to liability for injuries to others resulting from the contractor’s
Both sections 413 and 416 of the Restatement Second of Torts are exceptions to the general rule of nonliability that “the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.” (Rest.2d Torts, § 409.) Both impose on one who hires an independent contractor to do inherently dangerous work a duty to ensure that the contractor take special precautions to prevent harm to others. (See Bower v. Peate (1876) 1 Q.B.D. 321, 326 [“[A] man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise . . . cannot relieve himself of his responsibility by employing some one else . . . .”].) Thus, under both sections 413 and 416, the hiring person’s liability is cast in the form of the hiring person’s breach of a duty to see to it that special precautions are taken to prevent injuries to others; in that sense, the liability is “direct.” Yet, peculiar risk liability is not a traditional theory of direct liability for the risks created by one’s own conduct: Liability under both sections is in essence “vicarious” or “derivative” in the sense that it derives from the “act or omission” of the hired contractor, because it is the hired contractor who has caused the injury by failing to use reasonable care in performing the work. We made this point in Privette, supra,
As amicus curiae California State Department of Transportation notes, liability under both sections 413 and 416 of the Restatement Second of Torts “arises from the absence of special precautions which the contractor performing the work is required to take without regard to the requirements of the contract.” It points out that the confusion stems from the Restatement’s placement of the two sections: Section 413 appears in the “direct liability” provisions discussed in topic 1 of chapter 15, while section 416 appears under topic 2 of chapter 15, which deals with “vicarious liability.” This placement would imply theories of liability that are mutually exclusive. But the theory of liability expressed in section 413 (hiring person who fails to provide for special precautions liable for contractor’s negligence) is not mutually exclusive of section 416’s theory of liability (hiring person liable for contractor’s negligence in spite of providing that the contractor take special precautions). Rather, the two forms of liability overlap. As explained in Kelleher v. Empresa Hondurena de Vapores, S.A., supra,
Plaintiff Toland seizes on a comment in Privette, supra,
Privette relied in part on the reasoning expressed in a tentative draft to the Restatement Second of Torts that workplace injuries are covered by workers’ compensation insurance, “the cost of which is ‘included by the contractor in his contract price’ and ‘ultimately . . . borne by the defendant who hires him.’ ” (Privette, supra,
Therefore, under Privette, supra,
Thus, contrary to plaintiff Toland’s assertion, our decision in Privette, supra,
Against this considerable weight of authority, the concurring and dissenting opinion proposes that employees of an independent contractor should be exempt from Privette’s nonliability rule in cases in which the hiring person has “superior knowledge ... of a special risk or the precautions ... to avoid it. . . .” (Cone, and dis. opn., post, at p. 277.) This suggestion, couched in the familiar language of fault-based liability, has superficial appeal, but it does not hold up under scrutiny.
Even a cursory review of the cases in which employees of independent contractors have sought tort recovery under the doctrine of “peculiar risk” reveals that they arise overwhelmingly from injuries sustained in the building trades and typically involve claims brought against a general contractor by the employees of a subcontractor. It is a common practice in the construction industry for general contractors to hire subcontractors to do particular jobs. (See generally, Comment, The Peculiar Risk Doctrine: High Rise Benefits for California Construction Workers (1986) 19 Loyola L.A. L.Rev. 1495.) It would be a rare case indeed in which a general contractor was entirely ignorant of the methods used and requirements of the work being performed by subcontractors. Thus, although at first blush the concurring and dissenting opinion’s proposed rule appears limited in scope, its practical effect would be to eviscerate our holding here that employees of an independent contractor, because of the availability of workers’ compensation benefits, cannot seek recovery under section 413 of the Restatement Second of Torts.
Moreover, the proposed rule is impractical. The term “superior knowledge” has superficial appeal when considered in the abstract, but its practical application presents considerable difficulties. How is a trier of fact to determine whether to impose liability based on the relative knowledge of two parties, each of whom is “knowledgeable” in some form or degree? Must the general contractor’s knowledge be “superior” with regard to industry practices or must it be “superior” with regard to the actual instrumentality of the injury? Does a general contractor with 25 years of experience in the. construction industry possess greater or lesser knowledge than a subcontractor with 5 years of experience in a particular building trade? There is little basis on which a jury could sensibly impose liability using the concurring and dissenting opinion’s “comparative knowledge” rule.
Contrary to what the concurring and dissenting opinion implies, claims based on a general contractor’s “superior knowledge” will not be amenable to summary judgment, because the question of who possesses the “superior knowledge,” the subcontractor or the general contractor, will almost always present a triable issue of material fact. Summary judgment practice imposes on a moving defendant the burden of proving that a necessary element of the plaintiff’s case cannot be established. (Codе Civ. Proc., § 437c; Addy v. Bliss & Glennon (1996)
In the end, the concurring and dissenting opinion would effectively deprive general contractors of a right available to any other hiring person: the right to delegate to independent contractors the responsibility of ensuring the safety of their own workers. On peril of incurring civil liability, general contractors would, under the concurring and dissenting opinion’s approach, have to specify in their contracts with subcontractors every conceivable safety or precautionary measure to be taken during construction. Even then, a general contractor could still incur tort liability if the employee of a subcontractor suffers an injury because the employee could, in a lawsuit against the general contractor, claim that the safety measures set forth in the contract were just not specific enough in averting the injury. In effect, the concurring and dissenting opinion’s proposed rule would impose liability on general contractors simply for “having written a certain kind of contract, a contract found too vague on one point.” {Nelson v. United States (9th Cir. 1980)
Ultimately, our conclusion here that employees of independent contractors cannot recover under either section 416 or section 413 of the Restatement Second of Torts is premised on policy: whether the peculiar risk liability of a general contractor, a landowner, or any other hirer of an independent contractor should, consistent with its common law origins, be limited to protecting third parties such as innocent bystanders or neighboring landowners against the possible insolvency of the hired contractor at fault, or whether such liability should extend to the independent contractor’s employees as well. As we conсluded in Privette, supra,
Accordingly, the Court of Appeal in this case correctly held that our decision in Privette, supra,
The judgment of the Court of Appeal is affirmed.
George, C. J., Baxter, J., Chin, J., and Brown, J., concurred.
Notes
A third theory of “peculiar risk” liability is set forth in section 427 of the Restatement Second of Torts. Entitled, “Negligence as to Danger Inherent in the Work,” it provides: “One who employs an independent contractor to do work involving a speciаl danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.” (Ibid.) Here, plaintiff Toland, who relies on section 413, does not suggest that liability under section 427 is exempt from our holding in Privette, no doubt because a comment in the Restatement describes section 427 as “closely related to, and to a considerable extent a duplication of’ the rule stated in section 416. (Rest.2d Torts, § 427, com. a., p. 416.)
Our grant of review did not extend to, and therefore we do not decide, a second issue raised by Toland: whether Privette, supra,
By concocting a duty in a particular situation to prevent another from acting negligently, as an exception to the general rule that “one owes no duty to control the conduct of another” (Davidson v. City of Westminster (1982)
Our decision in no way precludes employees of independent contractors from seeking recovery from a general contractor or other hiring person for personal injury resulting from a failure to disclose a concealed preexisting danger at the site of the hired work that was known to the hiring person. Recovery in such a case would be for fraudulent concealment or misrepresentation, however, and would not involve the “comparative knowledge” analysis proposed by the concurring and dissenting opinion, nor would it depend on the peculiar risk doctrine.
To the extent that Owens v. Giannetta-Heinrich Construction Co., supra,
Concurrence Opinion
Concurring and Dissenting.—I concur in the majority’s result, but respectfully disagree with much of its rationale. I write separately to set forth my view of the applicable law.
Our task is to delineate the duty, if any, the hirer
I would adopt a third view: The hirer does owe the contractor’s employees a duty to ensure the taking of measures essential to avoid special risks of the work, but that duty extends only to those risks and precautions as to which the hirer’s knowledge or control is superior to that of the contractor. An independent contractor, in my view, should be solely responsible for his or her own negligence in failing to protect workers against those dangers that are within the actual or constructive knowledge and control of the contractor. The hirer, having engaged a presumably competent independent contractor to perform the work, is normally not obliged tо oversee the job’s performance or set out all the safety measures the contractor should take. In this I agree with the majority. But, when conditions within the special knowledge or control of the hirer create a danger inherent and peculiar to the work, there is no justification in statute, policy or precedent to immunize the hirer from tort liability for his or her own failure to require reasonable precautions be taken against the danger. Tort liability for injuries to the contractor’s employees should, therefore, be recognized only when the hirer “was in a better position than the contractor either to anticipate dangers to workmen, to foresee and evaluate the best methods of protection, or to implement and enforce compliance with appropriate on-site safety precautions.” (Nelson v. United States (9th Cir. 1980)
Because the record in this case shows the general contractor here was not better positioned than the framing subcontractor to know of, evaluate or protect against the risks of raising the wall unit, I concur in the affirmance of summary judgment for the defendant general contractor.
I
As a general rule, the hirer of an independent contractor is not liable in tort for injuries caused by the contractor’s work. The common law, however, recognizes numerous sets of circumstances that lie outside that rule, including two, both adopted in California, that involve the “special” оr “peculiar” risks created by inherently dangerous work. Section 413 embodies the theory of peculiar risk liability plaintiff relies upon here: The hirer is responsible for injuries caused by the failure of the contractor to take needed precautions against a special risk if the hirer is
Section 413 recognizes a theory of personal negligence not resting on vicarious responsibility for the torts of another. “In the first place, quite apart from any question of vicarious responsibility, the employer may be liable for any negligence of his own in connection with the work to be done. Where there is a foreseeable risk of harm to others unless precautions are taken, it is his duty to exercise reasonable care to . . . provide, in the contract or otherwise, for such precautions as reasonably appear to be called for.” (Prosser & Keeton on Torts (5th ed. 1984) § 71, p. 510, fns. omitted.) In this fundamental respect, which the majоrity opinion largely ignores, the theory of liability recognized in section 413 differs from that of section 416.
Official notes to the Restatement, and cases from this and other courts adopting the Restatement theories of liability, make amply clear that section 413 liability rests directly on the personal negligence of the hiring party itself, while section 416 liability is vicarious in nature. In a note introducing the various bases of a hirer’s liability for the acts of a contractor, the Restatement authors explain that the liability described in sections 410 to 415 has its principal application when, as stated in section 409, the hirer is not responsible for the contractor’s negligence: “In such a case, the [hirer’s] liability must be based upon his own personal negligence in failing . . . [e.g.,] to exercise reasonable care to provide for the taking of such precautions, either by the contractor whom he employs or otherwise, as in advance are recognizable as necessary to enable the work to be safely done (see § 413) . . . (Rest.2d Torts, ch. 15, topic 1, introductory note, p. 371, italics added.) On the other hand, the liability rules stated in sections 416 to 429, “unlike those stated in the preceding §§ 410-415, do not rest upon any personal negligence of the employer. They are rules of vicarious liability, making the employer liable for negligence of the independent contractor, irrespective of whether the employer has himself been at fault.” (Rest.2d Torts, ch. 15, topic 2, introductory note, p. 394, italics added.)
In Aceves v. Regal Pale Brewing Co. (1979)
Recognizing that section 413 liability rests on personal negligence rather than vicarious responsibility does not, however, fully solve "the problem before us; we must still decide the scope of the hirer’s duty. Under what circumstances, if any, will an omission on the hirer’s part be deemed negligent, making the hirer potentially liable to a contractor’s injured employee?
The federal court of appeals considered this question at length in Nelson, supra,
The appellate court, finding precedent divided on the application of section 413 to contractors’ employees, returned to first principles. “The independent contractor exception to the doctrine of respondeat superior rests on the general tort principle that in different circumstances different parties to the employment relation will know best how to avoid an accident and to weigh the costs and benefits of various precautions as against the costs and probability of the accident to be avoided.” (Nelson, supra,
The Nelson court therefore concluded that application of the section 413 theory to contractors’ employees should depend “on the relation between the owner[-hirer] and the contractor.” (Nelson, supra,
In my view, the Nelson approach properly allocates liability for injuries suffered by employees of an independent contractor. In most circumstances, the hirer will have discharged his or her duty of care by selecting a competent contractor, leaving to that contractor the task of assessing and taking precautions against the dangers to its workers. “As long as an independent contractor is informed about particular safety risks, and is compеtent and solvent, there is no reason in law or policy why he alone should not be fully responsible for injuries to workmen arising out of the performance of inherently dangerous jobs in which the contractor has special skill and experience not shared with the owner.” {Nelson, supra,
The majority’s holding that section 413 is completely inapplicable to injuries to a contractor’s employees rests on the false premise that in section 413 cases the contractor is necessarily negligent and the hirer nonnegligent. To the contrary, section 413 liability involves the hirer’s breach of its own duty of due care and does not depend on negligence on the part of the contractor. In some cases the hirer may have far superior knowledge or notice of the risks than the contractor and be better able to take or order the necessary precautions. On a construction project, for example, the hirer, whether landowner, general contractor or both, may have reason to know of special risks, arising, e.g., from a condition of the property, unusual characteristics of the construction design or the work of other subcontractors, risks a particular subcontractor could not be expected to consider or take measures against. The contractor (or subcontractor) in such a case would not be negligent in failing to take precautions, but, under the section 413 theory, liability would nonetheless lie against the hirer premised on the hirer’s own negligence.
Moloso v. State, supra,
To say, in the Moloso circumstances, that the excavation subcontractor was “primarily responsible” (maj. opn., ante, at p. 267) because it actually performed the work, and the state’s responsibility was therefore “vicarious” or “derivative” (id. at p. 265), would distort the circumstances of the case. The special danger of
H
For the reasons given above, I would hold that a hirer with superior knowledge or control of a special risk or the precautions necessary to avoid it owes the contractor’s employees a duty to take reasonable steps to protect them against the risk, as recognized in section 413. Neither the exclusivity provisions of the workers’ compensation law, nor the holding or rationale of Privette, supra,
Workers’ compensation is, of course, the exclusive remedy of the independent contractor’s employee against the contractor, assuming the contractor has properly secured payment of compensation. (Lab. Code, §§ 3600, 3602, 3706.) “On the other hand, the employee may sue any other responsible person for ‘all damages proximately resulting’ from the injury. (Id., § 3852.)” (DaFonte v. Up-Right, Inc. (1992)
It is the province of this court to determine, in the absence of applicable statute, the circumstances under which one person must bear vicarious liability in tort for another person’s negligent acts and omissions. In Privette, supra,
In Privette, a schoolteacher who owned a rental duplex hired a roofing company to replace the building’s roof. The plaintiff, one of the company’s workers, was injured when, at the foreman’s direction, he tried to carry buckets of hot tar up a ladder to the roof. Privette, the building owner, was not present at the time, and, as far as the opinion reveals, there was no evidence he had any roofing experience or any reason to appreciate any special risks of the work for which he hired the roofing company. We held the plaintiff could not hold Privette liable under the “peculiar
In our introduction, we referred to the peculiar risk doctrine as imposing “liability without fault” on the hirer. {Privette, supra,
A consistent theme thus runs through our discussion in Privette: The employee of an independent contractor should not be allowed to sue the hirer on a theory of vicarious liability for the contractor’s negligent аcts or omissions. Since the facts of Privette presented only the vicarious liability theory (the opinion reflects no evidence Privette was personally negligent), we had no occasion in Privette to discuss or decide the hirer’s liability to employees of the contractor for the hirer’s own negligent acts or omissions. As a Court of Appeal panel recently concluded after a careful reading of the opinion, Privette’s reach “is limited to instances where the injured employee seeks to hold the hirer answerable in tort damages for the fault of the independent contractor.” {Grahn v. Tosco Corp., supra,
Also important to our decision in Privette was the conclusion that the policies furthered by the peculiar risk doctrine were equally well served by the workers’ compensation system, making unnecessary the imposition of additional, vicarious liability on the hirer. The same cannot be said when liability is premised, under section 413, on the hirer’s negligent failure to take measures against a risk within his or her unique or superior knowledge or control. Although, as we observed in Privette, the contractor’s cost of securing compensation is likely to be passed through to the hirer in the contract price (Privette, supra,
Finally, we relied in Privette on considerations of fairness as between the hirer and the independent contractor. Having already paid the cost of compensation in the contract price, we observed, the hirer should not also have to bear civil damages for an accident “caused by the contractor’s negligent performance,” especially since the contractor itself enjoys civil immunity. {Privette, supra,
Nor does the hirer’s inability to obtain equitable indemnity from the independent contractor (Lab. Code, § 3864) create fundamental unfairness in the case of damages resulting frоm the hirer’s own negligence, as it would where the hirer’s liability is solely vicarious. (See Privette, supra, 5 Cal.4th at pp. 698, 701.) To the extent the fault is the hirer’s, no equitable indemnity should or would be available, whether the injury were to an employee or to a member of the public. Indeed, the workers’ compensation law provides that an employer who has paid compensation for an injury may recover that compensation payment, together with certain costs, fees and special damages, from a negligent third party in a civil action. (Lab. Code, §§ 3852, 3856.) If, as the majority seems to suggest, even a negligent hirer bears no civil responsibility for injuries to a contractor’s employees, the contractor, even if faultless, will be unable to recover its costs of compensation from the negligent hirer. “The judicial abolition of all hirer liability, based on Privette, would leave the injured party’s employer, who has paid workers’ compensation benefits, without recourse against the hirer whose negligence might have caused or contributed to the worker’s injuries . . . .” (Grahn v. Tosco, supra,
Finally, the hirer held liable under section 413 is not without remedy when a substantial degree of fault lies with the contractor. Like any other third party held partly at fault for an employee’s on-the-job injury, the hirer is entitled to (1) a reduction in the judgment “by an amount attributable to the employer’s [contractor’s] proportionate share of fault, up to the amount of workers’ compensation benefits paid” (DaFonte v. Up-Right, Inc., supra,
The holding I urge, that Privette does not bar liability on the part of a person who hires a contractor to perform inherently dangerous work, but fails to direct that precautions be taken against dangers specially known to or within the control of the hirer, would not nullify the effect of Privette or allow injured workers to routinely circumvent that decision. To be sure, some “pleading around” Privette might be expected, but the only way to prevent all such artful pleading would be to hold, as an absolute rule, that the hirer is never liable, on any theory, for injuries to the contractor’s workers, a rule even the majority does not explicitly embrace. Indeed, the majority’s concession that Privette does not bar liability for failure to disclose concealed dangers (maj. opn., ante, at p. 269, fn. 4) will itself provide ample shelter for the artful pleader. But pleading and proving are two different things. The circumstances in which I would allow liability are narrow, and, in a routine case of contractor negligence or pure accident, a cause of action against the hirer would not survive summary proceedings.
The distinction between liability imposed vicariously and that based on personal negligence, moreover, is one that can be coherently and predictably applied to determine what theories of liability are and are not barred by Privette. A recent Court of Appeal decision illustrates this approach. (Grahn v. Tosco Corp., supra,
My criticism in this respect is not directed at the majority’s conclusion that we do not have before us the question of liability for negligent exercise of retained control (§ 414), a conclusion with which I agree, but, rather, at the majority’s failure to articulаte for the present decision a coherent rationale that will guide future courts in deciding related questions as to the construction of Privette.
At places, the majority relies simply on its view (which I believe incorrect) that all “peculiar risk” liability is “derivative” or “vicarious,” perhaps suggesting Privette does not bar some other theories of hirer liability to a contractor’s workers. (E.g., maj. opn., ante, atp. 265 [alluding to “traditional theories] of direct liability,” which presumably are not barred by Privette].) At other points, however, the majority appears to rely on a broader rationale, one that logically would preclude other recognized theories of hirer liability, such as negligent exercise of retained control.
For example, the majority observes that sections 413 and 416 are both stated as exceptions to a general rule of nonliability for a contractor’s acts or omissions, embodied in section 409. (Maj. opn., ante, at p. 265.) True enough, but so, of course, is section 414, which recognizes the retained control theory of liability. Similarly, at page 266, ante, the majority relies on the argument made in a tentative draft of the Restatement (but not adopted in comments to the final version) that a hirer’s liability to “others” or “another,” as those words are used in the Restatement, should not extend to employees of the contractor, because injuries to those employees are covered by workers’ compensation, the costs of which are passed on to hirers. That reasoning, of course, suggests that all theories of hirer liability to the contractor’s employees should be barred, including that embodied in section 414, which states that a hirer may be liable to “others” for negligent exercise of retained control. Yet the majority opinion (ante, p. 269, fn. 4) then disavows an interpretation of Privette as barring all hirer liability. The majority opinion, in short, adds regrettable confusion to an already muddled area of the law.
Ill
The summary judgment record reveals plaintiff Timothy Toland, an employee of the framing subcontractor CLP Construction, Inc. (CLP) was injured while attempting, with several other CLP workers, to raise a framed wall to the vertical position. At the CLP foreman’s direction, the crew tried to “walk” the wall up from underneath; after a certain point they were unable to raise it further and, for reasons not clear from the evidence, it suddenly fell, with Toland trapped beneath it. There was evidence the wall’s design and the wet winter weather made the frame relatively heavy and that the wind was gusting strongly at or around the time the crew tried to raise it. Plaintiff’s expert declared that “[ijndustry custom of good safe practice dictates that tall walls and or heavy walls (such as the wall in question) be raised or stood by mechanical means as opposed to manual (man power) methods.” On the next working day after the accident in which Toland was injured, CLP used a boom truck to raise the wall.
I would hold the record failed to present a triable issue, under the Nelson analysis, as to liability of the general contractor and developer, Sunland Housing Group, Inc. (Sunland), for injuries resulting from a peculiar
For this reason, I concur in the result.
Mosk, J., concurred.
As noted in Grahn v. Tosco Corp. (1997)
Unless otherwise noted, all further section references are to the Restatement Second of Torts.
A peculiar or special risk is one “peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done.” (§ 413, com. b, p. 385.) Section 413 does not hold the hirer liable merely for failing to prevent the contractor from doing the work negligently. (Ibid.; see Hughes v. Atlantic Pacific Construction Co. (1987)