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Hooker v. Department of Transportation1/31/2002
ractor's employee. "We are persuaded that the holdings of Privette and Toland should also apply to employees' claims under section 414 at least where, as here, (1) the sole factual basis for the claim is that the hirer failed to exercise a general supervisory power to require the contractor to correct an unsafe procedure or condition of the contractor's own making, and (2) there is no evidence that the hirer's conduct contributed in any way to the contractor's negligent performance by, e.g., inducing injurious action or inaction through actual direction, reliance on the hirer, or otherwise. The fairness rationale at the core of Privette and Toland applies equally to preclude imposition of liability on a hirer for mere failure to exercise a general supervisory power to prevent the creation or continuation of a hazardous practice, where such liability would exceed that imposed on the injured plaintiff's immediate employer, who created the hazard." (Kinney, supra, 87 Cal.App.4th at p. 36.)
In Kinney, an employee of a subcontractor (PBE) was injured in a fall from scaffolding, and he sued the general contractor, CSB Construction, Inc. (CSB), for negligent exercise of retained control. Kinney is strikingly similar to the present case in that, although the hirer in theory retained a high degree of control over safety conditions at the jobsite, there was no indication the hirer contributed to the accident by an affirmative exercise of that control. "The parties agreed for purposes of the summary judgment motion that during the performance of the subcontract, CSB `had the right to order any safety means or measures that it felt were appropriate' on the jobsite. . . . [According to the testimony of CSB's site superintendent], f he saw an unsafe condition, he `had a right to do whatever [he thought was] appropriate.' . . . Specifically, ` f a subcontractor was working without adequate fall protection and felt that fall protection was required, would . . . tell them that they needed fall protection' and `would . . . stop the work until they had good fall protection.' . . . However, he did not recall an instance in which he actually directed PBE or any of the other subcontractors on the job to alleviate an unsafe condition." (Kinney, supra, 87 Cal.App.4th at p. 31.)
The question, as the Kinney court framed it, was "whether a general contractor who claims the power to control all safety procedures on the worksite may be liable to the injured employee of a subcontractor for failing to direct the subcontractor to take safety precautions where there is no evidence that any conduct by the general contractor contributed affirmatively to the injuries." (Kinney, supra, 87 Cal.App.4th at p. 30.) Kinney answered that question in the negative. "We hold that in light of recent California Supreme Court holdings limiting the liability of general contractors for injuries to employees of subcontractors, liability cannot be imposed on the general contractor based upon a mere failure to require the subcontractor to take safety precautions, where the general contractor's failure is not shown to have affirmatively contributed to the creation or persistence of the hazard causing the plaintiff's injuries. Accordingly, we affirm the judgment for defendant." (Ibid.)
The Kinney court correctly applied our prior decisions. Imposing tort liability on a hirer of an independent contractor when the hirer's conduct has affirmatively contributed to the injuries of the contractor's employee is consistent with the rationale of our decisions in Privette, Toland and Camargo because the liability of the hirer in such a case is not " `in essence "vicarious" or "derivative" in the sense that it derives from the "act or omission" o
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