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Hooker v. Department of Transportation1/31/2002
f the hired contractor.' " (Camargo, supra, 25 Cal.4th at p. 1244, quoting Toland, supra, 18 Cal.4th at p. 265.) To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term.
Unlike the rule announced in Grahn, the rule announced in Kinney is not susceptible to the objection raised by Caltrans that a defendant will never be able to prevail on a motion for summary judgment in an action for negligent exercise of retained control. To the contrary, where, as here, the plaintiff fails to present a triable issue as to whether the defendant's exercise of retained control affirmatively contributed to the employee's injuries, summary judgment is appropriate.
Caltrans also objects that two policy considerations that we have relied upon in barring employees of independent contractors from bringing tort actions against the hirers of the contractors under the peculiar risk doctrine or the negligent hiring doctrine also apply to actions brought under the retained control doctrine.
Caltrans finds support in the following passage from Camargo: "Two of the related policy considerations we relied upon in Privette also support our conclusion here that an employee of an independent contractor should not be permitted to bring a negligent hiring action against the hirer of the contractor: (1) The rule of workers' compensation exclusivity, which shields an independent contractor who pays workers' compensation insurance premiums from further liability to its employees, should equally apply to the person hiring the contractor because the hirer has indirectly paid the cost of such coverage inasmuch as it was presumably calculated into the contract price (Privette, supra, 5 Cal.4th at p. 699); and (2) permitting such a recovery would give employees of independent contractors an unwarranted windfall, something that is denied other workers-the right to recover tort damages for industrial injuries caused by their employer's failure to provide a safe working environment (id. at pp. 699-700)." (Camargo, supra, 25 Cal.4th at pp. 1244-1245, fn. omitted.)
Caltrans's reliance is misplaced. While it is true that the cost of workers' compensation insurance coverage is as likely to have been calculated into the contract price paid by the hirer in a retained control case as it is in peculiar risk or negligent hiring cases, the contract price could not have reflected the cost of injuries that are attributable to the hirer's affirmative conduct. The contractor has no way of calculating an increase in the costs of coverage that are attributable to the conduct of third parties, which is why the employee, despite the existence of the workers' compensation system, is not barred from suing a third party who proximately causes the employee's injury. (See Lab. Code, ยง 3852.)
Moreover, a close reading of our opinion in Privette reveals another ground for distinguishing between peculiar risk and negligent hiring cases, on the one hand, and negligent exercise of retained control cases, on the other, in this regard. "At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work. [Citations.] Central to this rule of non-liability was the recognition that a person who hired an independent contractor had ` " no right of control as to the mode of doing the work contracted for" ' (Green v. Soule (1904) 145 Cal. 96, 99; accord, McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788.)[ ] The reasoning was that the work performed was the enterprise of the contractor, who, as a matter of business convenience, would be better able than the person employing the con
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