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Hooker v. Department of Transportation1/31/2002
have to retract the outriggers. This complex of evidence raises at least a triable issue of fact (Code Civ. Proc., § 437c) as to whether Caltrans negligently exercised its retained control over construction zone traffic, contributing to the decedent's death.
To be sure, the evidence suggests that Caltrans did not bear sole fault in the accident. Caltrans apparently did not order the decedent to retract the outriggers for passing traffic; nor, apparently, did Caltrans direct the decedent to attempt operating the crane before reextending the outriggers. It may be that a jury, hearing all the evidence, would find the decedent largely at fault for his own death and assign to Caltrans only a small share of the fault, based on its having permitted and contributed to the overpass traffic. In that case, Caltrans's liability would be reduced; the comparative fault system operates to reduce the liability of a negligent hirer in the same manner as it reduces the liability of other third parties for employee injuries. (See Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 280 (conc. & dis. opn. of Werdegar, J.).) No special judicial test of negligence is required in order to achieve a fair allocation of fault.
The majority's "affirmatively contribute" test of negligence liability reflects the notion that a person who actually performs a dangerous act, or directs its performance, is likely to be more at fault for the resulting accident than a person who merely fails to correct the conditions creating the danger. One might expect that generalization to be reflected, as well, in a jury verdict on liability: to the extent the hirer's fault is seen as resting solely on inaction, the jury is likely to assign the hirer a low share of fault in comparison to those who contributed to the injury by their actual participation in the operation. But the determination of comparative fault in this manner, like any negligence determination, rests on the specific facts of the case: to whom was the danger apparent; who had the ability to alleviate the danger, and by what means and at what costs? From the distinctions between activity and passivity, act and omission, which a jury might properly use to measure and compare fault, the majority fashions a purported bright-line rule for courts to apply. Its effort is both unnecessary and inimical to the jury system.
I do not suggest every retained-control claim must go to a jury. The mere fact that a contract gives the hiring party general control over the project and the authority to stop work should not create liability if, in practice, the hirer's supervision and control did not actually extend to any part of the operation contributing to the hazard. As the Restatement Second of Torts cautions: "It is not enough that [the hirer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. . . . There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way." (Rest.2d Torts, § 414, com. c, p. 388; see also Hobbs v. Mobil Oil Corporation (Alaska 1968) 445 P.2d 933, 936 [hirer not liable to a contractor's employee if "under the contract and in actual practice" the hirer's control does not affect the contractor's "methods of work" or the "operative detail" of the work].)
The present case, however, is not merely one of contractual or formal control. Plaintiff has produced evidence from which one can infer that Caltrans's actual exercise of control over traffic on the site affected the manner in which the cran
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