 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Hooker v. Department of Transportation1/31/2002
tractor to absorb accident losses incurred in the course of the contracted work. This could be done, for instance, by indirectly including the cost of safety precautions and insurance coverage in the contract price. [Citations.]" (Privette, supra, 5 Cal.4th at p. 693, italics added.) On the other hand, if a hirer does retain control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employee's injuries, it is only fair to impose liability on the hirer.
Similarly, if an employee of an independent contractor can show that the hirer of the contractor affirmatively contributed to the employee's injuries, then permitting the employee to sue the hirer for negligent exercise of retained control cannot be said to give the employee an unwarranted windfall. The tort liability of the hirer is warranted by the hirer's own affirmative conduct. The rule of workers' compensation exclusivity "does not preclude the employee from suing anyone else whose conduct was a proximate cause of the injury" (Privette, supra, 5 Cal.4th at p. 697), and when affirmative conduct by the hirer of a contractor is a proximate cause contributing to the injuries of an employee of a contractor, the employee should not be precluded from suing the hirer.
Grahn, supra, 58 Cal.4th 1373, is disapproved insofar as it is inconsistent with this opinion.
III. By Merely Permitting Traffic to Use the Overpass, Caltrans Did Not Affirmatively Contribute to Mr. Hooker's Death
In oral argument before this court, a question was raised as to whether Caltrans required, in the sense of ordered, the crane operator to retract his outriggers to permit vehicles to pass. The record does not reflect that any such order was issued by Caltrans. Indeed, in response to a question from the bench, counsel for the plaintiff admitted: "The honest answer to your question . . . is [Caltrans] permitted it to happen. They permitted this traffic to happen on the overpass. They didn't direct it to happen."
Confusion in this regard was generated by an earlier statement made by plaintiff's counsel. In arguing that Caltrans's exercise of retained control affirmatively contributed to Mr. Hooker's death, plaintiff's counsel stated, "I think it's an affirmative act when Caltrans's own engineer specifically comes up and requires the operator to retract the outriggers." He later explained what he meant by this: "There was evidence in the record that the Caltrans Senior Engineer himself used the overpass as a shortcut to traverse the construction and had to wait until the operator retracted the outriggers." This narrower statement is supported by the record.
Perhaps the clearest way to put it is this: Caltrans permitted construction vehicles, as well as vehicles owned and operated by Caltrans, to use the overpass while the crane was being operated, and because the overpass was narrow, the crane operator was required to retract the outriggers in order to let the traffic pass. That is what plaintiff asserted below: "Given the narrow width of the portion of the [high occupancy vehicle] lane where he was working, Mr. Hooker was regularly required to retract his extended outriggers to permit construction vehicles, including vehicles owned and operated by Defendant State of California, to pass."
We are not persuaded that Caltrans, by permitting traffic to use the overpass while the crane was being operated, affirmatively contributed to Mr. Hooker's death. Interestingly, when pressed for a standard, plaintiff's counsel referred to a passage in the Thompson opinion of the Utah Supreme Court quoted above: "Under the `active participation' standard,
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 California Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|