California Law on Vicarious Liability for Injuries Caused by the Negligence of an Independent Contractor
We begin by discussing California law governing a hirer's vicarious liability for injuries caused by the negligence of an independent contractor.
At common law, a person who hired an independent contractor to perform a task generally was not liable to third parties for injuries caused by the independent contractor's negligence.
Central to this rule of nonliability "'was the recognition that a person who hired an independent contractor had "'no right of control as to the mode of doing the work contracted for.'"'"
Although that was the common law rule, "'over time, the courts ... created so many exceptions to this general rule of nonliability that "'"the rule came to be primarily important as a preamble to the catalog of its exceptions."'"'" (Ibid.)
The doctrine of peculiar risk is an exception to the common law rule that a hirer was not liable for the torts of an independent contractor. Under this doctrine, "a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others. By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caused by inherently dangerous work will be compensated, that the person for whose benefit the contracted work is done bears responsibility for any risks of injury to others, and that adequate safeguards are taken to prevent such injuries."
This doctrine of peculiar risk thus represents a limitation on the common law rule and a corresponding expansion of hirer vicarious liability.
In its 1993 decision in Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court limited the peculiar risk doctrine as it applied to injured employees of independent contractors. Privette concerned a roofing contractor's employee who was injured when he fell off a ladder and was burned by hot tar. The employee sued the owner of the home he had been roofing, contending that the homeowner was liable for his injuries under the doctrine of peculiar risk. (Id. at pp. 692-693.)
The Supreme Court disagreed, concluding that while the homeowner would be liable to an "innocent bystander" (id. at p. 701) injured by the independent contractor's negligence, he was not liable to an independent contractor's employee.
The court explained: "The peculiar risk doctrine seeks to ensure that injuries caused by contracted work will not go uncompensated, that the risk of loss for such injuries is spread to the person who contracted for and thus primarily benefited from the contracted work, and that adequate safety measures are taken to prevent injuries resulting from such work. . But in the case of on-the-job injury to an employee of an independent contractor, the workers' compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk. It ensures compensation for injury by providing swift and sure compensation to employees for any workplace injury; it spreads the risk created by the performance of dangerous work to those who contract for and thus benefit from such work, by including the cost of workers' compensation insurance in the price for the contracted work; and it encourages industrial safety." (Ibid.)
Thus, the court concluded, "when considered in light of the various goals that the workers' compensation statutes seek to achieve, the conclusion that peculiar risk liability should extend to the employees of the independent contractor, does not withstand scrutiny." (Id. at pp. 701-702.)
Following Privette, the Supreme Court issued several decisions discussing the peculiar risk doctrine as it applied to employees of independent contractors. In Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 74 Cal. Rptr. 2d 878, 955 P.2d 504 (Toland), the court held that the hirer of an independent contractor was not liable to the contractor's employee for failing to specify that the contractor should take special precautions to avert a peculiar risk. In Hooker v. Department of Transportation, supra, 27 Cal.4th 198, the court held that an independent contractor's employees may recover from the contractor's hirer if the hirer retained control of the work and failed to exercise its control with reasonable care.
In 2010, in Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, the court expanded the Privette doctrine (and thus reduced the scope of hirer liability) to hold that a general contractor is not vicariously liable to an independent contractor hired by a subcontractor for jobsite injuries on a theory of peculiar risk. The court explained: "When an independent contractor is hired to perform inherently dangerous construction work, that contractor, unlike a mere employee, receives authority to determine how the work is to be performed and assumes a corresponding responsibility to see that the work is performed safely.
The independent contractor receives this authority over the manner in which the work is to be performed from the hirer by a process of delegation. This delegation may be direct, when the hirer has contracted with the independent contractor, or indirect, when the hirer contracts with another contractor who then subcontracts the work to the independent contractor. . Whether direct or indirect, this delegated control over the performance of the work removes the independent contractor from the category of 'innocent third parties' deserving of financial protection under the doctrine of peculiar risk.
As this court stressed in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 36 Cal. Rptr. 3d 495, 123 P.3d 931, when the hirer of an independent contractor delegates control over the work to the contractor, the hirer also delegates 'responsibility for performing the task safely.' . Therefore, a hired independent contractor who suffers injury resulting from risks inherent in the hired work, after having assumed responsibility for all safety precautions reasonably necessary to prevent precisely those sorts of injuries, is not, in the words of Privette, supra, at page 694, a 'hapless victim' of someone else's misconduct. In that situation, the reason for imposing vicarious liability on a hirer--compensating an innocent third party for injury caused by the risks inherent in the hired work--is missing.
"As noted earlier, a hirer's liability under the doctrine of peculiar risk is vicarious. (Privette, supra, 5 Cal.4th at p. 695 & fn. 2.) This means that, irrespective of the hirer's lack of negligence, the hirer incurs liability for the hired contractor's act or omission in failing to use reasonable care in performing the hired work. (Toland, supra, 18 Cal.4th at p. 265.) And in hiring an independent contractor to perform work that presents some inherent risk of injury to others, the hirer delegates responsibility over the work to the contractor. (See Kinsman, supra, 37 Cal.4th at p. 671.)
It would be anomalous to allow an independent contractor to whom responsibility over the hired work has been delegated to recover against the hirer on a peculiar risk theory while denying such recovery to an independent contractor's employee, a person who lacks any authority over the hired work." (Tverberg, supra, 49 Cal.4th at p. 528.)