Kinsman v. Unocal Corp. 36 Cal. Rptr. 3d 495 (Dec. 19, 2005)
The state Supreme Court ruled that a landowner who hires an independent contractor may be liable for injuries to the contractor’s employees if the landowner knew or reasonably should have known of a concealed hazardous condition, and the condition could not reasonably have been discovered by the contractor.
Plaintiff Ray Kinsman worked for Burke & Reynolds, an independent contractor hired by Unocal Corporation to perform scaffolding work at a Unocal refinery. Kinsman worked at the refinery on many occasions during the 1950s, and was exposed to asbestos dust. Burke & Reynolds did not provide safety equipment to Kinsman, and he did not wear a mask or respirator. Years later, Kinsman developed asbestos-induced cancer of the lungs. He sued numerous product manufacturers, product distributors, and premises owners, including premises owner Unocal. The case against Unocal proceeded to trial, and a jury determined Unocal was negligent under a premises liability theory, awarding Kinsman more than $3 million.
Unocal appealed, and the appellate court reversed and remanded for a new trial. The Court of Appeal, after reviewing Privette v. Superior Court, 5 Cal. 4th 689 (1993), and subsequent cases regarding a hirer’s liability for injuries to employees of independent contractors, held that “a contractor’s employee cannot recover under [a premises liability] theory unless the landowner had control over the dangerous condition and affirmatively contributed to the employee’s injury.” Kinsman appealed.
The Supreme Court reversed the Court of Appeal. The Court, which arrived at its holding by meshing the Privette cases and the doctrine of landowner liability, first reviewed common law and the Privette line of decisions. Generally, the rule at common law was that an employer of an independent contractor was not liable to victims of negligence of the independent contractor. However, one of the many exceptions to the rule is the peculiar risk doctrine, which holds employers liable for the negligent acts of independent contractors if the employers hired the independent contractors to do inherently dangerous work. Privette held that despite the peculiar risk doctrine, a person who hires an independent contractor to do dangerous work is not liable for the contractor’s negligence when that negligence causes injury to an employee, because such an injury is already covered by worker’s compensation. However, subsequent cases Hooker v. Department of Transportation, 27 Cal. 4th 198 (2002) and McKown v. Wal-Mart Stores, Inc., 27 Cal. 4th 219 (2002) held that where an employer has not fully delegated the responsibility of ensuring safe working conditions to the independent contractor, and where the employer’s participation affirmatively contributes to the injury, the employer may be held liable.
The Court then reviewed the doctrine of landowner liability established in Rowland v. Christian, 69 Cal. 2d 108 (1968), which held that a landowner must take reasonable care to prevent injury to an entrant onto his property regardless of the status of the entrant (trespasser, licensee, or invitee). In Rowland, the Court held, “Where the occupier of land is aware that a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.” (69 Cal. 2d at 119.)
Applying reasoning from the Privette cases and the doctrine of landowner liability, the Court reasoned that
- [T]he hirer generally delegates to the [independent] contractor responsibility for supervising the job, including responsibility for looking after employee safety. When the hirer is also a landowner, part of that delegation includes taking proper precautions to protect against obvious hazards in the workplace. ? Thus, 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
- and its progeny is that the hirer generally delegates the responsibility to take such precautions to the contractor, and is not liable to the contractor’s employee if the contractor fails to do so. ?
- However, if the hazard is concealed from the contractor, but known to the landowner, the rule must be different. A landowner cannot effectively delegate to the contractor responsibility for the safety of its employees if it fails to disclose critical information needed to fulfill that responsibility, and therefore the landowner would be liable to the contractor’s employee if the employee’s injury is attributable to an undisclosed hazard.
The Court thus ruled that a landowner who hires an independent contractor may be held liable for injuries to the employees of the contractor, even if the landowner retains no control over the work, if: 1) the landowner knows or reasonably should know of a concealed pre-existing hazardous condition on the property; 2) the contractor does not know and could not reasonably discover this hazard; and 3) the landowner fails to warn the contractor. The Court also noted, however, that “the principles enunciated in Privette suggest that the landowner would not be liable when the contractor has failed to engage in inspections of the premises implicitly or explicitly delegated to it.”
The Court went on to rule that in Kinsman’s case, the trial court’s failure to properly instruct the jury ? that Unocal was liable only if the hazard was unknown and not reasonably ascertainable to the independent contractor ? was prejudicial to Unocal, and remanded the case for a new trial.
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