Hooker v. Department of Transportation1/31/2002
amargo, supra, 25 Cal.4th at pp. 1242-1245, disapproving Grahn, supra, 58 Cal.App.4th 1373, insofar as it was inconsistent with that opinion).
In Grahn, an employee of an independent contractor sued the hirer of the contractor under three theories of negligence, including negligent hiring (§ 411) and negligent exercise of retained control (§ 414). (Grahn, supra, 58 Cal.App.4th at pp. 1389-1396.) Grahn was decided after Privette but before Toland, and without the benefit of the gloss provided by Toland, the Court of Appeal in Grahn misunderstood Privette to have been bottomed on the ground that the hirer in a peculiar risk case is not directly negligent. "In Privette, the court had before it only the issue of whether a peculiar risk theory could be used to hold a nonnegligent hirer liable under vicarious liability for the negligence of the independent contractor." (Grahn, at p. 1384.) To the contrary, as we explained in Toland and reiterated in Camargo, "the rationale of our decision in Privette extends to cases where the hirer is directly negligent in the sense of having failed to take precautions against the peculiar risks involved in the work entrusted to the contractor. To repeat: In Toland, we rejected the plaintiff's argument that Privette did not bar recovery for direct liability under section 413, but only for vicarious liability under section 416." (Camargo, supra, 25 Cal.4th at pp. 1243-1244.)
The Grahn court repeated its mistake in applying Privette to the doctrine of retained control. "Having retained control of the independent contractor's work, the hirer has a direct and nonimputed obligation to see that reasonable precautions are taken to eliminate or reduce the risk of harm to the employees of its independent contractors." (Grahn, supra, 58 Cal.App.4th at p. 1394, italics added.) Again, the conclusion that a hirer's liability can be characterized as direct does not end the inquiry into whether the hirer should be held liable for injuries to a contractor's employees, as we explained in Camargo. "Admittedly, as the Grahn court observed, under section 411, the hirer is, in a sense, being taxed with his own negligence under a theory of direct liability. (Grahn, at p. 1385.) However, the same could be said with regard to an action brought under the peculiar risk theory set forth in section 413. More importantly, under both sections 411 and 413, the liability of the hirer is `in essence "vicarious" or "derivative" in the sense that it derives from the "act or omission" of the hired contractor, because it is the hired contractor who caused the injury by failing to use reasonable care in performing the work.' (Toland, supra, 18 Cal.4th at p. 265.) Therefore, in a negligent hiring case under the theory set forth in section 411, just as in peculiar risk cases under the theories set forth in sections 413 and 416, `it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage.' (Toland, supra, 18 Cal.4th at p. 267.)" (Camargo, supra, 25 Cal.4th at p. 1244.)
Similarly, because the liability of the contractor, the person primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage, it would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite. In fairness, as the Kinney court recognized, the imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the cont
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