No Vicarious Liability
This motion is made on the grounds that a hiring party, such as Parsons, may not be held vicariously liable for the negligence of an independent contractor that allegedly results in any injury to any of the independent contractors employees, such as plaintiff.
I. PRIVETTE AND TOLAND EXPRESSLY LIMITED VICARIOUS LIABILITY CLAIMS TO INNOCENT BYSTANDERS
The Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689, and in Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, has expressly held that employees of independent contractors, injured during the performance of their work, cannot maintain vicarious liability claims against the hiring parties. Toland summarized the bases for these decisions:
Privette relied in part on the reasoning expressed in a tentative draft to the Restatement Second of Torts that workplace injuries are covered by workers compensation insurance. the cost of which is included by the contractor in the contract price and ultimately … borne by the defendant who hires him.” … The tentative draft also stated that when the Sections of this Chapter speak of liability to “another,” or “others” or to third persons, it is to be understood that the employees of the contractor, as well as those of the defendant himself are not included.
Therefore, under Privette, even though a person hiring an independent contractor to do inherently dangerous work can be liable under the peculiar risk doctrine for failing to see to it that a hired contractor take special precautions to protect neighboring property owners or innocent bystanders, such a person has no obligation to specify the precautions an independent hired contractor should take for the safety of the contractors employees. Absent an obligation, there can be no liability in tort. 18 Cal.4th at 266-267.
Chapter 15 of the Restatement Second of Torts sets forth the general rule that a party hiring an independent contractor is not liable for injuries caused by the negligence of the contractor or the contractors employees (Section 409), and then discusses the various exceptions to that general rule. The exceptions allegedly relevant to the asbestos litigation — peculiar risk (Sections 413 and 416) and nondelegable duties created by statute (Section 424) — specifically address the issue of injuries to “others,” which, as pointed out in Toland, the Privette Court determined did not include the independent contractors employees.
Therefore, these theories are no longer available to any employee of an independent contractor asserting claims against any party, such as Parsons, that hired the contractor for injuries resulting from the contractor’s negligence.
II. PRIVETTE LOGICALLY ENCOMPASSES MORE THAN JUST PECULIAR RISK
Privette expressly overruled Woolen v. Aerojet General Corp. (1962) 57 Cal.2d 407. Woolen had allowed a hired contractors employee to seek recovery from a non-negligent property owner. Privette, supra, 5 Cal.4th at 696. The reason Privette reconsidered Woolen because Privette presented an issue that had never before been considered by the Supreme Court in such a context: the exclusive remedy provisions of the workers compensation system. Privette, supra, 5 Cal.4th at 696. Thus, Privette stressed that
Until today, we have had no occasion to attempt to reconcile our decision in Woolen with the provision of the workers compensation scheme limiting employer liability for an employees work-related injury to providing workers compensation coverage. Id., at 700.
Further, the Privette Court prefaced its decision to overturn Woolen with the words, “when considered in light of the various goals that the workers compensation statutes seek to achieve….” Id., at 701.
Thus, the core of the Privette decision is workers’ compensation’s exclusive remedy provisions applied to liability claimed under the peculiar risk doctrine. But, it would be absurd to Privette’s scope to peculiar risk. Privette and Toland could easily be rendered completely ineffectual, and the workers compensation system easily circumvented, if they were so limited. Other causes of action could easily take the place of liability under the peculiar risk doctrine.
For example, if all that it takes is the assertion that the party who hires the independent contractor has a nondelegable duty to keep the workplace fee of hazards created by the independent contractor to establish an independent basis for liability, then both Privette and Toland might as well never have been decided. Even though the same policy concerns articulated in Privette and Toland might be present, even though the workers compensation systems exclusive remedy requirement would be circumvented, and even though the basic relationship between the parties is the same, all a plaintiffs attorney need to do is alleged causes of action framed in words other than “peculiar risk” and Privette and Toland would be bypassed.
Fidelity to Privette and Toland requires an examination of the reasons underlying those decisions, and serious consideration of whether those reasons apply to a given claim by an independent contractors employee, regardless of whether that claim is framed in terms of “peculiar risk,” or “nondelegable duty,” or “retention of control,” or “negligent hiring.”
The basic reasons underlying Privette are:
(1) The anomaly that a non-negligent party should pay more than the negligent independent contractor who caused the injury in the first place. Privette, supra, 5 Cal.4th at 698.
(2) The unwarranted windfall that accrues to employees who work for independent contractors which is denied to other workers. Id., at 700.
(3) The inability of the hiring party to obtain equitable indemnity from the negligent independent contractor. Id., at 701.
(4) The need not to penalize persons who hire “experts to perform dangerous work rather than assigning such activity to their own inexperienced employees.” Id., at 700.
(5) The question whether liability advances “any societal interest that is no already served by the workers compensation system.” Id., at 692.
Nothing about these factors is necessarily confined to peculiar risk liability. For example, liability under the alleged nondelegable duty to maintain a safe workplace, is the functional equivalent of peculiar risk, when the hazard was created by the independent contractor. As a practical matter, liability under a nondelegable duty theory means nothing more than the failure to intervene to correct a hazard that would not exist but for the independent contractor. In such a case, any tort liability to an employee of an independent contractor imposed on the hiring party is wholly derivative, and based on the hiring parties inaction in failing to correct a hazard created by the employees employer. Indeed, if there is any difference between application of peculiar risk and nondelegable duty to insure a safe workplace, the difference favors tort liability less in the latter situation. There, the nature of the hazard is directly related to the concerns of the workers compensation system.
After Privette and Toland, nondelegable duty is a duplicative theory in cases where the independent contractor creates the hazard that injures it employee. All of the same concerns animating Privette are present: The party who did not create the hazard faces tort liability while the party who created the hazard has no such exposure. The injured employee gains the windfall of both workers compensation and tort recovery because of the fortuity of working for an employer who was itself hired by another party. The same lack of equitable indemnity remains. Hiring parties are penalized for having hired experts — had they attempted the job themselves they might have created even more hazards but at least their exposure would be limited to workers compensation. And, overall, no societal purpose is served that is not already served by workers compensation.
Thus, neither Privette nor Toland can be limited to liability under the peculiar risk doctrine. These decisions compel a conclusion that all forms of vicarious liability do not extend to the employees of independent contractors, whose injuries are compensated by workers’ compensation.
SACK ROSENDIN, LLP
Email: [email protected]