Metropolitan News-Enterprise


Friday, February 1, 2002


Page 3


S.C. Clarifies Hirer’s Liability for Negligence of Independent Contractor


By a MetNews Staff Writer


The hirer of an independent contractor is liable for injury to an employee of the contractor if the hirer has retained control of the worksite and affirmatively contributed to the injuries, the state Supreme Court ruled yesterday.

The justices ruled in the latest pair of cases dealing with hirer liability for injuries to employees of independent contractors. The court had ruled within the past decade that such suits cannot be brought under the “peculiar risk” doctrine set forth in Secs. 413 and 416 of the Restatement Second of Torts, nor under the negligent hiring theory set forth in Sec. 411.

The cases ruled on yesterday dealt with yet another theory, “negligent exercise of retained control,” set forth in Sec. 414. The section provides:

“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”

In one of yesterday’s cases, the justices ruled 6-1 that the widow of a crane operator killed while working for a general contractor on a highway project cannot sue Caltrans because there is no evidence the agency did anything to cause the accident. Paul Hooker was thrown to the pavement and killed when his crane became unstable and tipped over as he attempted to swing the boom while the outriggers were retracted.

Roseanne Hooker claimed Caltrans was responsible for the accident because it’s representatives on the site should have known, and informed her husband, that it was unsafe to operate the crane without re-extending the outriggers. Hooker had retracted the outriggers, and left the crane for a time, in order to allow traffic to pass.

Los Angeles Superior Court Judge David Horowitz agreed with Caltrans that it was not liable and granted summary judgment. This district’s Court of Appeal reversed in an unpublished opinion.

Justice Janice Rogers Brown, writing for the high court, said the trial judge was correct. “[B]ecause 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,” the justice wrote.

Instead, Brown wrote, “fairness permits liability to be imposed on the hirer only if it “exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee.”

Justice Kathryn M. Werdegar, the lone dissenter, argued that juries should be allowed to determine the facts and allocate fault under comparative negligence principles in retained-control cases.

In the case of Hooker’s death, she said, Caltrans may have been at least slightly at fault, since it “permitted and contributed to” the overpass traffic that caused Hooker to retract the outriggers. The fact that the department did not “affirmatively contribute” to the accident should reduce its liability, not bar it as a matter of law, she reasoned.

The case was argued by Michael L. Goldberg of McLean, Va. for the plaintiff, Carol Boyd of Century City’s Neumeyer & Boyd for Caltrans, and John P. Carpenter of Salt Lake City for the Associated General Contractors of California as amicus in support of Caltrans.

In the companion case, the justices unanimously ruled that an employee of a company hired by Wal-Mart Stores, Inc. to install a sound system in its Chino store was entitled to sue Wal-Mart for injuries suffered when he fell from a platform that was being raised by a forklift.

A San Bernardino Superior Court jury found Wal-Mart 23 percent responsible for Brian McKown’s injuries because it provide the platform and forklift without a chain to secure them to each other. The remaining fault was allocated 55 percent to McKown’s employer, 15 percent to the manufacturer of the equipment, and 7 percent to the plaintiff.

The Court of Appeal and the Supreme Court affirmed the trial court’s decision.

Brown said Wal-Mart was properly held liable because it had affirmatively contributed to the injuries by negligently furnishing unsafe equipment.

The case was argued by Will Tomlinson of Santa Barbara for Wal-Mart, Robert H. Pourvali of Calabasas for the plaintiff, and Fred J. Hiestand of Sacramento for the Civil Justice Association of California as amicus in support of Wal-Mart.

The cases are Hooker v. Department of Transportation, 02 S.O.S. 559, and McKown v. Wal-Mart Stores, Inc., 02 S.O.S. 567.


Copyright 2002, Metropolitan News Company