Metropolitan News-Enterprise


Thursday, October 30, 2003


Page 3


State Supreme Court to Consider Premises Owner’s Liability to Independent Contractor’s Employee


By a MetNews Staff Writer


The state Supreme Court yesterday agreed to decide when a premises owner may be liable for injuries sustained by the employee of an independent contractor due to a dangerous condition on the owner’s property.

The high court took up, on a 5-2 vote, the ruling of the First District Court of Appeal in Kinsman v. Unocal Corporation (2003) 110 Cal.App.4th 826. In her July opinion for Div. Three, Justice Joann C. Parrilli said the case presented “an unsettled question under Privette v. Superior Court (1993) 5 Cal.4th 689…and its progeny.”

The appellate court justice concluded that, based on “the policies expressed in Privette and the Supreme Court’s application of those policies in recent cases,…a premises owner has no liability to an independent contractor’s employee for a dangerous condition a contractor has created on the property unless the dangerous condition was within the property owner’s control and the owner exercised this control in a manner that affirmatively contributed to the employee’s injury.”

Chief Justice Ronald M. George and Justices Marvin Baxter, Joyce Kennard, Kathryn M. Werdegar and Carlos Moreno voted to grant review.

The First District reversed a $3 million jury award against Unocal Corporation won by Ray Kinsman, who claimed he developed lung cancer after being exposed to asbestos dust while building scaffolding during repair work at Unocal’s Wilmington refinery. Kinsman worked for an independent contractor.

Parrilli said the instructions given by San Francisco Superior Court Judge Paul H. Alvarado on Kinsman’s premises liability theory of recovery did not include the limitations required under a correct reading of Privette.

“[T]he Supreme Court has adhered to the policies outlined in Privette that limit a hirer’s vicarious or derivative liability to a contractor’s employee; however, the court has also made it clear that these policies are not violated when a hirer is held liable to such an employee based on the hirer’s own affirmative negligence,” Parrilli wrote.

She explained:

“Kinsman’s theory of negligence consisted of evidence showing Unocal knew asbestos was present in areas of the refinery where Kinsman worked, Unocal had access to information such that it knew or should have known the asbestos in its refinery was dangerous, and Unocal contracted for work that involved the release of asbestos fibers into the air without warning Kinsman of the hazard or urging him to wear a mask. Based on this evidence and the BAJI 8.01 instruction, the jury held Unocal liable for negligent maintenance of its land.  However, the jury also found Unocal did not retain control over the methods or manner in which Kinsman performed his work. Given this finding, if the jury had been instructed about the limits on Unocal’s liability described in this opinion, it would likely have concluded Unocal had no liability to Kinsman whatsoever—because Unocal did not retain control over the dangerous condition (i.e., airborne asbestos) present on its land, or because the evidence did not show that Unocal affirmatively contributed to Kinsman’s injury.”


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