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McKown v. Wal-Mart Stores1/31/2002
This is the third in a series of recent cases in which we have been called upon to consider the reach of our decisions in Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland). In Privette and Toland, we held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiar risk doctrine set forth in sections 413 and 416 of the Restatement Second of Torts (hereafter Restatement), but is restricted instead to a claim against the contractor under the workers' compensation insurance system. The two prior cases, respectively, raise the question whether, under the rationale of Privette and Toland, an employee of an independent contractor is barred from suing the hirer of the contractor under the tort theories of (1) negligent hiring, and (2) negligent exercise of retained control. In Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 (Camargo), we held that an employee of an independent contractor is barred from suing the hirer of the contractor for the tort of negligent hiring. In Hooker v. Department of Transportation (Jan. 31, 2002, S091601) __ Cal.4th __ (Hooker), a companion to this case, we held that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries. In this case, we hold that a hirer is liable to an employee of an independent contractor insofar as the hirer's provision of unsafe equipment affirmatively contributes to the employee's injury.
Factual and Procedural Background
McKown was the employee of an independent contractor hired by defendant Wal-Mart Stores, Inc. (Wal-Mart) to install sound systems in its stores, including the store in Chino where this accident occurred. Installation of the sound systems involved running wires and installing speakers in the store ceilings. Wal-Mart requested that the contractor use Wal-Mart's forklifts whenever possible in performing the work. The request was understood not to be a directive. The forklift that Wal-Mart employees furnished McKown had equipment for overhead work, consisting of a work platform along with a four-foot extension to raise the platform. For safety, the extension was supposed to be chained to the forklift, and the platform chained to the forklift or to the extension. However, only one chain, securing the extension to the forklift, was provided by Wal-Mart. After discussing the advisability of using the forklift without a chain securing the platform to the extension or the forklift, McKown and his colleague decided to do so. While his colleague was driving the forklift and McKown was working on the platform, the platform hit a ceiling pipe, disengaged from the extension, and fell about 12 to 15 feet to the floor with McKown on it.
A jury found that Wal-Mart was negligent in providing unsafe equipment and allocated 55 percent of the responsibility for the accident to McKown's employer, 23 percent to Wal-Mart, 15 percent to the manufacturer of the equipment, and 7 percent to McKown. The Court of Appeal affirmed the judgment, concluding that "plaintiff's claim that Wal-Mart negligently supplied unsafe equipment was viable notwithstanding Privette and Toland." We granted review, and limited the issue to be briefed and argued to the question whether, under our decisions in Privette and Toland, an employee of an independent contractor is barred from pursuing a lawsuit against the hirer of the independent contractor on t
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