 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Hooker v. Department of Transportation1/31/2002
contractor for negligent exercise of retained control. The Court of Appeals of Kentucky concluded that " othing in the discussions of Sections 413, 414, 416, and 427 of the Restatement, Torts 2d, indicates that an employee of an independent contractor is within the class of `others' protected by those sections." (King v. Shelby Rural Electric Cooperative Corp. (Ky.Ct.App. 1974) 502 S.W.2d 659, 662, italics added.) In Parker v. Neighborhood Theatres (Md.Ct.Spec.App. 1988) 547 A.2d 1080, the Court of Special Appeals of Maryland, after concluding the plaintiff had failed to establish retention of control, added that the plaintiff had also failed to provide the court "with any authority that an employee of an independent contractor injured by the negligence of his own master is a person intended to be included among the class of persons to whom the owner owes a non-delegable duty of reasonable care. . . . No matter how appellant phrases it, what he is unsuccessfully attempting is an end run on the Worker's Compensation Law." (Id. at p. 1085.) In Sutherland v. Barton (Minn. 1997) 570 N.W.2d 1, the Supreme Court of Minnesota found that no triable issue had been presented as to retained control, and so it reinstated the summary judgment in favor of the hirer, which had been reversed by the intermediate appellate court. In the course of reaching that conclusion, the court noted that "when applying the Restatement [Second of Torts] sections that impose liability on companies hiring independent contractors, we have held that `others' does not include the employees of an independent contractor. [Citation.] This limitation also applies to ยง 414." (Id. at p. 5, fn. omitted.)
Recently, the Courts of Appeal of California that have addressed the question have agreed that a hirer may, under certain circumstances, be liable to an employee of a contractor under a retained control theory. However, they have disagreed as to whether mere retention of control is sufficient, or whether something more, something like the Utah Supreme Court's concept of active participation, must be shown. (Compare Grahn v. Tosco Corp. (1997) 58 Cal.App.4th 1373 (Grahn) with Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28 (Kinney).) Under Grahn, "the hirer may be held liable to the independent contractor's employee where the hirer retains sufficient control over the work of an independent contractor to be able to prevent or eliminate through the exercise of reasonable care the dangerous condition causing injury to the independent contractor's employee. [Citations.]" (Grahn, at p. 1393, italics added.) Under Kinney, on the other hand, mere retention of the ability to control safety conditions is not enough. " general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct. The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff. Insofar as section 414 might permit the imposition of liability on a general contractor for mere failure to intervene in a subcontractor's working methods or procedures, without evidence that the general contractor affirmatively contributed to the employment of those methods or procedures, that section is inapplicable to claims by subcontractors' employees against the general contractor." (Kinney, at p. 39.)
The Kinney court, we conclude, correctly applied the principles of our decisions in Privette and Toland, whereas the Grahn court made much the same mistake in applying Privette to section 414 as it did in applying that case to section 411 (see C
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.
|
|