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Hooker v. Department of Transportation1/31/2002
a principal employer is subject to liability for injuries arising out of its independent contractor's work if the employer is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.]" (Thompson, supra, 979 P.2d at p. 327, italics added.) To repeat, Caltrans did not direct the crane operator to retract his outriggers to permit traffic to pass.
Accordingly, under the standard we announce today, summary judgment was appropriate here. Plaintiff raised triable issues of material fact as to whether defendant retained control over safety conditions at the worksite. However, plaintiff failed to raise triable issues of material fact as to whether defendant actually exercised the retained control so as to affirmatively contribute to the death of plaintiff's husband. While the evidence suggests that the crane tipped over because the crane operator swung the boom while the outriggers were retracted, and that the crane operator had a practice of retracting the outriggers to permit construction traffic to pass the crane on the overpass, there was no evidence Caltrans's exercise of retained control over safety conditions at the worksite affirmatively contributed to the adoption of that practice by the crane operator. There was, at most, evidence that Caltrans's safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it.
Disposition
The judgment of the Court of Appeal is reversed and the matter remanded for further proceedings consistent with this opinion.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
DISSENTING OPINION BY WERDEGAR, J.
I respectfully dissent. While I agree with the majority that a party hiring an independent contractor may be liable in tort to employees of the contractor for negligent exercise of control the hirer has retained over any part of the work, I disagree that such liability may exist only when the hirer's exercise of control "affirmatively contributed to the injury of the contractor's employee" (maj. opn., ante, at p. 15, italics in original). The majority's analysis, and the result it reaches in this case, usurp the factfinding and fault allocation functions assigned to the jury under our comparative fault system.
The evidence produced on summary judgment showed that California Department of Transportation (Caltrans) employees had permitted construction traffic on the overpass where plaintiff's decedent was working, and had driven Caltrans's own vehicles on the overpass. The Caltrans construction manual required the construction safety coordinator to know proper "construction zone traffic management," implying that Caltrans bore responsibility for exercising such management. A reasonable trier of fact could infer that Caltrans retained control over construction zone traffic management and that, in exercising this retained control, Caltrans used, and permitted other vehicles to use, the overpass. The resulting traffic frequently required the decedent to retract the outriggers of his crane, a practice that led proximately to his fatal accident. Evidence showed as well that Caltrans representatives had observed the outriggers being repeatedly retracted, knew the crane was unstable in that state, and knew that if they were to flag off the overpass the crane operator would not
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