Liability for Independent Contractors Torts In California
Is a person who hires an independent contractor is usually liable for the independent contractors torts in califonia ?
Under the doctrine of peculiar risk, a person who hires an independent contractor to do inherently dangerous work can be held liable in tort if the contractor negligently injures others in performing the work. (Toland, supra, 18 Cal. 4th 253, 256.)
In Privette v. Superior Court (1993), 5 Cal. 4th 689, however, the Supreme Court held the hiring party's liability does not extend to the independent contractor's employees.
The court reasoned that it would be anomalous to subject the hiring party to tort damages when the contractor's liability is limited to workers' compensation benefits. (Id., at pp. 698-703.)
In Toland v. Sunland Housing Group, Inc. (1998), 18 Cal. 4th 253, the court considered whether Privette should apply only to peculiar risk liability under the Restatement Second of Torts (hereafter the Restatement), section 416, or also should apply to liability under section 413 of the Restatement.
Both sections impose liability where the hiring party should realize that injury is likely unless the contractor takes special precautions in performing the work.
Section 416 applies where the hiring party provides for such precautions, but the contractor fails to take the precautions.
Section 413 applies where the hiring party fails to provide for the precautions.
Section 413 of the Restatement provides: "One who employs an independent contractor to do work which the employer should recognize is 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
"(a) fails to provide in the contract that the contractor shall take such precautions, or
"(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions."
Section 416 of the Restatement 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."
The Toland court held Privette bars recovery in either case.
It rejected the plaintiff's contention that Privette only precludes "vicarious" liability under the Restatement, section 416, and not "direct" liability under section 413.
Liability under both sections, the court stated, is "vicarious" in the sense it is based on the negligent conduct of the contractor, but "direct" in the sense it is based on the hiring party's breach of its own duty to see that precautions are taken.
Under Privette, however, a hiring party has no duty to specify the precautions the contractor should take for the safety of the contractor's employees.
Therefore, Privette precludes liability under either section when it is the contractor's employees who are injured. (Toland, supra, 18 Cal. 4th at pp. 264-267.)
Privette v. Superior Court (1993) and Toland v. Sunland Housing Group, Inc. (1998) raise the question whether a hiring party may be held liable if its independent negligent conduct contributes to the injury, even though it may not be held liable for failing to require the contractor to take special precautions. the court in Toland stated:
"It would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage." (Toland, supra, 18 Cal. 4th at p. 267, italics added.)
This statement could be read to mean that, even if the hiring party's own conduct was partly responsible for the injury, Privette would still bar recovery as long as the contractor was primarily responsible.
Similarly, the court in Toland observed that "imposing on the hiring person a liability greater than that incurred by the independent contractor (the party with the greatest and most direct fault) is equally unfair and illogical whether the hiring person's liability is premised on the theory of section 413 . . . or the theory of section 416 . . . ." (Toland, supra, 18 Cal. 4th at p. 270, italics added.)
Again, this statement could be read to mean that, even if the hiring party has some fault, he or she is not liable as long as the contractor's own fault is greater and more direct.
Elsewhere in the opinion, however, the Toland court seemingly left open the possibility that a hiring party could be liable to the contractor's employees if the injuries resulted from the hiring party's own conduct rather than merely from the hiring party's failure to prevent the contractor from acting negligently.
The court stated that "by concocting a duty in a particular situation to prevent another from acting negligently . . . it is always possible to impose liability on one person for the negligence of another and to label that liability 'direct.'" (Toland, supra, 18 Cal. 4th at p. 265, fn. 3.)
It criticized the concurring and dissenting opinion for refusing "to acknowledge any distinction between this artificial 'direct liability' and the liability imposed on the hiring person for injuries resulting from the hiring person's own conduct, such as, for example, concealing a hidden danger [citation] or insisting on use of an unsafe method to execute the work." (Ibid.)
The Toland court went on to state:
"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 . . . depend on the peculiar risk doctrine." (Toland, supra, 18 Cal. 4th at p. 269, fn. 4.)
Thus, Toland suggests that, notwithstanding the general rule of Privette precluding liability for the contractor's negligence, a hiring party still may be liable to an employee if "the hiring party's own conduct" causes or contributes to the injury. (Toland, supra, 18 Cal. 4th at pp. 265, fn. 3.)
Two recent Court of Appeal decisions have adopted this interpretation of Privette and Toland.