What Does Peculiar Risk Doctrine Mean ?

The doctrine of peculiar risk is described in sections 413 and 416 of the Restatement Second of Torts. (Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 256.) Under section 413, a hiring person is liable for failing to provide for special precautions to avert peculiar risks if the independent contractor's negligence causes injury to others. (Ibid.) Under section 416, a hiring person is liable for a contractor's negligence in spite of providing that the contractor take special precautions. (Toland v. Sunland Housing Group, Inc., supra, 18 Cal.4th p. 257.) In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court addressed the exception that allows liability to be extended to a hirer when the contracted work poses a "peculiar risk" of injury to others. (Id. at p. 694.) The court observed that the original purpose of the peculiar risk doctrine was to ensure that one who initiated activities posing a special hazard to third parties could not evade liability by hiring an insolvent contractor. (Ibid.) The court further noted that as between two innocent parties-the person who contracted for the work and the hapless victim of the contractor's negligence-the risk of loss was more fairly allocated to the person for whose benefit the job was undertaken. (Ibid.) The court explained that the policy reasons behind the peculiar risk doctrine lost most of its force when the claimant is injured while employed by the contactor to perform the contracted-for work. (Id. at p. 696.) The court held that when the person injured by negligently performed contracted work is one of the contractor's own employees, the injury is already compensable under the workers' compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor. (Ibid.) In Toland v. Sunland Housing Group, Inc., supra, 18 Cal.4th 253, the Supreme Court reaffirmed and clarified its holding in Privette. There, a subcontractor's employee sued the general contractor for on-the-job injuries he sustained after a wall fell on him. (Id. at p. 257.) Rejecting the plaintiff's argument that Privette only applies to claims brought under section 416 of the Restatement Second of Torts, the court held that the Privette rationale also precludes liability under section 413 of the Restatement. The court reasoned that "in either situation, 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 v. Sunland Housing Group, Inc., supra, 18 Cal.4th at p. 267.) In Hooker, the court addressed the issue of whether an injured employee of a contractor could sue the hirer of the contractor for the tort of negligent exercise of retained control. (Hooker, supra, 27 Cal.4th at p. 200.) There, the widow of a deceased crane operator sued the California Department of Transportation (Caltrans), which had hired the decedent's employer to construct an overpass. (Id. at p. 203.) The widow alleged that Caltrans was liable because it negligently exercised control it had retained over the safety conditions at the job site. (Ibid.) Specifically, Caltrans permitted other vehicles to use the overpass where the decedent operated his crane, and he had to retract the crane's outriggers to let the traffic pass. (Id. at p. 202.) When the decedent attempted to swing the boom on the crane with the outriggers retracted, the weight of the boom caused the crane to tip over, and he fell to his death. (Ibid.) The court found the trial court properly granted summary judgment for the hirer, because the decedent's widow failed to present a triable issue of material act as to whether the hirer's exercise of retained control affirmatively contributed to the decedent's injuries. (Hooker, supra, 27 Cal.4th at p. 215.) Quoting Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 39, an opinion from this division, the court found that: " 'A general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct. The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff.' " (Hooker, supra, 27 Cal.4th at p. 209.) The court concluded that by merely permitting traffic to use the overpass, Caltrans did not affirmatively contribute to the decedent's death. (Id. at pp. 214-215.) In McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, a companion to the Hooker case, the court confronted the issue of whether an employee of an independent contractor is barred from suing a hirer of the independent contractor for negligently providing unsafe equipment to be used in the contracted-for work. There, the plaintiff was injured using a forklift supplied by Wal-Mart. (Id. at p. 223.) The court held that a hirer is liable to an employee of an independent contractor insofar as the hirer's provision of unsafe equipment affirmatively contributes to the employee's injury. (Id. at pp. 222-223.) The court reasoned that when the hiring party actively contributes to the injury by supplying defective equipment, it is the hiring party's own negligence that renders it liable, not that of the contractor. (Id. at p. 225.)