Kinsman v. Unocal Corp.

Decision Date18 July 2003
Docket NumberNo. A093649.,No. A093424.,A093424.,A093649.
Citation110 Cal.App.4th 826,2 Cal.Rptr.3d 87
CourtCalifornia Court of Appeals Court of Appeals
PartiesRay KINSMAN et al., Plaintiffs and Respondents, v. UNOCAL CORPORATION, Defendant and Appellant.

Wartnick, Chaber, Harowitz & Tigerman, for Respondent.

PARRILLI, J.

This case presents an unsettled question under Privette v. Superior Court (1993) 5 Cal.th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Privette) and its progeny: Under what circumstances, if any, may a premises owner be held liable for injuries sustained by the employee of an independent contractor due to a dangerous condition on the owner's property? Based on the policies expressed in Privette and the Supreme Court's application of those policies in recent cases, we conclude 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. Because the jury instructions in this case did not reflect these limitations on the premises owner's liability, we reverse for a new trial.1

BACKGROUND

During the 1950's, plaintiff Ray Kinsman worked on many occasions as a carpenter at defendant Unocal's refinery in Wilmington, California. Kinsman was employed by Burke & Reynolds, an independent contractor Unocal hired to perform scaffolding work during periods of "shutdown" and repair at the refinery. Kinsman built and dismantled scaffolding used by other trades, including pipefitters and insulators. This work exposed him to airborne asbestos, which was produced by other trades— particularly insulators—during their application and removal of asbestos-containing insulation from pipes and machinery. Though Kinsman did not work directly with such insulation, the evidence showed he was exposed to asbestos dust in three ways: (1) When insulators worked on scaffolding, asbestos-containing debris accumulated on the planks. Kinsman was exposed to this asbestos material when he cleared debris from the planks in dismantling used scaffolding. (2) Some asbestos dust was produced from Kinsman's work "tying in" scaffolding to insulated pipes or equipment. (3) Asbestos fibers released by the work of other trades "float[ed] in the air," exposing Kinsman as he worked nearby. Kinsman did not wear a mask or respirator at Unocal.

Years later, Kinsman developed mesothelioma, an asbestos-induced malignant cancer of the lining of the lungs. He sued scores of product manufacturers and distributors, as well as several premises owners. Ultimately, the case proceeded to a jury trial against Unocal, a "premises defendant," alone. The parties stipulated that Kinsman was exposed to asbestos during his work at Unocal. In addition, following uncontroverted expert testimony that labeled this exposure a "substantial factor" contributing to Kinsman's development of mesothelioma, the trial court granted a directed verdict for Kinsman on the issue of causation. Because the parties also stipulated Kinsman bore no contributory fault, the only disputed issues before the jury concerned whether, and to what extent, Unocal was negligent, whether Kinsman's wife suffered a loss of consortium, and the amount of damages suffered by the Kinsmans.

Kinsman claimed Unocal was negligent because, in the 1950's, the company knew or should have known that asbestos was hazardous, but it failed to warn Kinsman or protect him from the hazard. To show Unocal's knowledge, Kinsman relied on several published articles in the 1930's and 1940's linking asbestos with asbestosis, lung cancer and mesothelioma, and reports distributed by other oil companies and oil industry associations in the 1940's and 1950's that described the risks associated with asbestos exposure. Given Unocal's access to these published articles and reports and its membership in oil industry associations, Kinsman's expert testified that, in the 1950's, oil companies such as Unocal knew or should have known asbestos posed a risk of harm to refinery workers. Despite this knowledge, Unocal never warned Kinsman about the danger of asbestos exposure and did not provide him with a mask to wear for protection. Kinsman testified, however, that he would have asked his employer, Burke & Reynolds, for a mask if he wanted one. He also testified that Burke & Reynolds never discussed the health risks of asbestos at its safety meetings.

Kinsman submitted his case on two theories of Unocal's liability: (1) negligence "in the use, maintenance or management of the areas where Ray Kinsman worked," and (2) negligence in the exercise of retained control over "the methods of the work or the manner of the work performed by ... Ray Kinsman." The jury found Unocal did not retain control over the methods or manner of Kinsman's work, and thus did not reach the question of negligence under the "retained control" theory; however, the jury concluded Unocal was negligent in the "use, maintenance or management" of the refinery. It assigned Unocal 15 percent of the fault in causing Kinsman's mesothelioma, with the remaining 85 percent of fault attributable to "all others," and awarded the plaintiffs over $3 million in compensatory damages.

Unocal separately appealed from the judgment on the jury verdict and the court's denial of its motion for judgment notwithstanding the verdict. We consolidated the appeals for briefing and oral argument.

DISCUSSION

I. Premises Owner's Liability to Employees of Independent Contractor

Unocal contends the BAJI 8.01 instruction read to the jury in connection with the negligent maintenance of property claim did not properly define the duty of care owed by Unocal, a premises owner, to Kinsman, an independent contractor's employee. Specifically, Unocal asserts the instruction failed to reflect the policybased limitations on liability established in the line of cases under Privette, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721. We begin our discussion with a brief review of these cases.

A. Relevant Supreme Court Precedents

The general rule at common law is that the hirer2 of an independent contractor is not liable to third parties for physical injuries caused by the contractor's negligence in performing the work. (Rest.2d Torts, § 409; Privette, supra, 5 Cal.4th at p. 693, 21 Cal.Rptr.2d 72, 854 P.2d 721.) However, "[o]ver time, the courts have, for policy reasons, created so many exceptions to this general rule of nonliability that `"`the rule is now primarily important as a preamble to the catalog of its exceptions.'"' [Citations.]" (Privette, supra, at p. 693, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

In Privette, the Supreme Court addressed the exception that allows liability to be extended to a hirer when the contracted work poses a "peculiar risk" of injury to others. The peculiar risk exception evolved as a way "to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work on the land would not have to depend on the contractor's solvency in order to receive compensation for the injuries. [Citations.]" (Privette, supra, 5 Cal.4th at p. 694, 21 Cal.Rptr.2d 72, 854 P.2d 721.) California was one of the minority of jurisdictions that expanded this doctrine beyond third parties and allowed the contractor's employees to seek recovery from the hirer for injuries caused by the contractor's negligence. (Id. at p. 696, 21 Cal.Rptr.2d 72, 854 P.2d 721 [discussing Woolen v. Aerojet General Corp. (1962) 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708].) However, the Privette court determined this extension of peculiar risk liability to hirers did not "withstand scrutiny" when considered in light of the workers' compensation scheme. (Privette, supra, at pp. 701-702, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Whereas an innocent bystander might have no other source of compensation for injuries resulting from a contractor's negligence, the workers' compensation system guarantees the contractor's employee a recovery for workplace injuries, regardless of the solvency of the contractor. (Id. at p. 701, 21 Cal.Rptr.2d 72, 854 P.2d 721; Toland, supra, 18 Cal.4th at p. 261, 74 Cal.Rptr.2d 878, 955 P.2d 504.) And, while extension of liability to the hirer is generally justified by the hirer's right to equitable indemnity from the contractor, such indemnity is not available for compensation paid to a contractor's employees. "[T]he exclusivity provisions of the workers' compensation scheme shield the negligent contractor from an action seeking equitable indemnity. ([Lab.Code,] § 3864.)" (Privette, supra, at p. 701, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Privette concluded: "When, as here, the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers' compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries." (Id. at p. 702, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

In Toland, supra, 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504, the court reaffirmed Privette and explained the scope of its holding. Insofar as it is relevant here, the doctrine of peculiar risk is described in sections 413 and 416 of the Restatement Second of Torts (hereafter Restatement).3 Under section 413, one who hires a contractor to do inherently dangerous work but fails to require "in the contract" or "in some other manner" that the contractor take special...

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