Kinsman v. Unocal Corp

In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, an employee of an independent contractor was injured as a result of a hazardous condition (exposure to asbestos) on the landowner's premises when it was claimed that only the landowner knew the employee, a carpenter, was being exposed to the hazardous substance. The court held that 'the hirer as landowner may be independently liable to the contractor's employee even if it does not retain control over the work, if: (1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; (3) the landowner fails to warn the contractor.' The court emphasized that its holding 'would not apply to a hazard created by the independent contractor itself, of which that contractor necessarily is or should be aware.' " (Kinsman, supra, 37 Cal.4th at pp. 664, 675 & 675, fn. 3.) In sum, in Kinsman v. Unocal Corp., an employee of a contractor hired by an oil company was injured by asbestos used to insulate the pipes. The employee claimed that the oil company negligently failed to warn the contractor of the presence of asbestos or to provide safety equipment. Finding a potential duty of care on the part of the oil company because the contractor was not aware of the asbestos danger, the Supreme Court commented that "when the hirer does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the employee's injury, the hirer may be liable in tort to the employee." (37 Cal.4th at p. 671.) The California Supreme Court explained that it is useful to view Privette v. Superior Court (1993) and its progeny in terms of delegation and that, because of the availability of workers' compensation, strong policy reasons favor the ability of a hirer of an independent contractor to delegate to the contractor the responsibility for performing the work safely. "Nonetheless, when the hirer does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the employee's injury, the hirer may be liable in tort to the employee." (Kinsman, at p. 671.) Where the hirer is a landowner and the independent contractor's employee is injured by a hazardous condition on the hirer's premises, the hirer's delegation of responsibility for employee safety to the contractor "includes taking proper precautions to protect against obvious hazards in the workplace. There may be situations . . . in which an obvious hazard, for which no warning is necessary, nonetheless gives rise to a duty on a landowner's part to remedy the hazard because knowledge of the hazard is inadequate to prevent injury. [However], when there is a known safety hazard on a hirer's premises that can be addressed through reasonable safety precautions on the part of the independent contractor, a corollary of Privette and its progeny is that the hirer generally delegates the responsibility to take such precautions to the contractor, and is not liable to contractor's employee if the contractor fails to do so." (Kinsman, supra, 37 Cal.4th at pp. 673-674.)