Liability of a Hirer of an Independent Contractor for Workplace Injuries
In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, the California Supreme Court decided another in a series of cases addressing the liability of a hirer of an independent contractor for workplace injuries sustained by that contractor's employee under theories presented by the Restatement Second of Torts (the Restatement). (Hooker, supra, 27 Cal.4th at pp. 201-202.)
In particular, the court considered whether an independent contractor's employee may sue the hirer for negligent exercise of retained control, as that tort is described in section 414 of the Restatement. (Hooker, at p. 201.)
Section 414 provides: "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." (Hooker, at p. 201.)
Hooker involved a claim against the California Department of Transportation (Caltrans), which had hired a general contractor to construct an overpass, for injuries sustained by one of the general contractor's employees, a crane operator. (Hooker, supra, 27 Cal.4th at p. 202.)
Because the overpass was 25 feet wide and the crane with extended outriggers was 18 feet wide, the crane operator would retract the outriggers to allow construction and Caltrans vehicles to pass. On one occasion, he retracted the outriggers and left the crane. Upon his return, he proceeded to swing the boom without first re-extending the outriggers, and was killed when the crane tipped over. (Ibid.)
Under its construction manual, Caltrans was responsible for obtaining the contractor's compliance with safety laws and regulations, and its construction safety coordinator was required to be familiar with construction zone traffic management and also recognize and anticipate unsafe conditions created by the contractor's operation. (Ibid.)
The senior Caltrans representative on the jobsite, whose responsibilities included safety, had previously observed crane operators on the project retract their outriggers to let other vehicles pass, and testified he knew they did this "from time to time or frequently" and he realized a crane would be unstable if its boom were extended while its outriggers were retracted. The resident Caltrans engineer had the power to shut the project down due to safety conditions and to remove the contractor's employees for failing to comply with safety regulations. (Id. at pp. 202-203.)
The operator's widow sued Caltrans for its negligence in exercising the control it had retained over jobsite safety conditions. Caltrans successfully moved for summary judgment, arguing that the plaintiff's action was barred by Privette v. Superior Court (1993) 5 Cal.4th 689 and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253.
The court of appeal reversed. (Hooker, supra, 27 Cal.4th at p. 203.)
In Privette and Toland, the Supreme Court "held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiar risk doctrine set forth in sections 413 and 416 of the Restatement.
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 hirer has provided for special precautions in the contract or otherwise, the hirer 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." (Hooker, supra, 27 Cal.4th at pp. 200-201.)
Subsequently, in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, the Supreme Court extended Privette and Toland to the tort of negligent hiring under the Restatement section 411.
The basis for these decisions is that the hirer's liability under these sections is in essence "vicarious" or "derivative" in the sense that it derives from the act or omission of the hired contractor, even though it may also be characterized as "direct" in that the hirer can be said to have failed to take precautions against the peculiar risks involved in the entrusted work. (See Privette, supra, 5 Cal.4th at p. 695, fn. 2; Toland, supra, 18 Cal.4th at p. 265; Camargo, 25 Cal.4th at pp. 1243-1244.)
This being the case, the court explained it would be unfair to impose liability on the hirer because the contractor, the one primarily responsible for the worker's injuries, is protected by the workers' compensation system, which limits the contractor's liability. (Toland, at p. 267; Camargo, at pp. 1244-1245.)
The California Supreme court in Hooker held "that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries." (Hooker, supra, 27 Cal.4th at p. 202.) According to Hooker, "such affirmative contribution need not always be in the form of actively directing a contractor or contractor's employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury." (Id. at p. 212, fn. 3.) Applying fairness principles expressed in Privette and Toland, and approving the court of appeal's opinion in Kinney, supra, 87 Cal.App.4th 28, the court explained:
"Because the liability of the contractor, the person primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage, it would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite. In fairness . . . the imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee. 'We are persuaded that the holdings of Privette and Toland should also apply to employees' claims under section 414 at least where, as here, (1) the sole factual basis for the claim is that the hirer failed to exercise a general supervisory power to require the contractor to correct an unsafe procedure or condition of the contractor's own making, and (2) there is no evidence that the hirer's conduct contributed in any way to the contractor's negligent performance by, e.g., inducing injurious action or inaction through actual direction, reliance on the hirer, or otherwise. The fairness rationale at the core of Privette and Toland applies equally to preclude imposition of liability on a hirer for mere failure to exercise a general supervisory power to prevent the creation or continuation of a hazardous practice, where such liability would exceed that imposed on the injured plaintiff's immediate employer, who created the hazard.' " (Hooker, supra, 27 Cal.4th at pp. 210-211, in part quoting Kinney, supra, 87 Cal.App.4th at p. 36.)
The court reasoned that imposing tort liability in such circumstances is consistent with Privette and its progeny "because the liability of the hirer in such a case is not ' "in essence 'vicarious' or 'derivative' in the sense that it derives from the 'act or omission' of the hired contractor." ' To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term." (Hooker, supra, at p. 212.)
Under the evidence presented as to Caltrans's actions and responsibilities, the court in Hooker was not persuaded that Caltrans affirmatively contributed to the crane operator's death. It pointed out Caltrans merely permitted traffic to use the overpass while the crane was being operated, thus requiring the crane operator to retract the outriggers. ( Hooker, supra, 27 Cal.4th at p. 214.)
The court emphasized that "Caltrans did not direct the crane operator to retract his outriggers to permit traffic to pass." (Ibid.)
In concluding that summary judgment was appropriate, the court observed that "while the evidence suggests that the crane tipped over because the crane operator swung the boom while the outriggers were retracted, and that the crane operator had a practice of retracting the outriggers to permit construction traffic to pass the crane on the overpass, there was no evidence Caltrans's exercise of retained control over safety conditions at the worksite affirmatively contributed to the adoption of that practice by the crane operator. There was, at most, evidence that Caltrans's safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it." (Ibid.)