Privette v. Superior Court

• Decision Date: 19 July 1993
• Docket Number: No. S024758,S024758
• Citation: 854 P.2d 721,21 Cal.Rptr.2d 72,5 Cal.4th 689
• Court: California Supreme Court
• Parties: , 854 P.2d 721 Franklin PRIVETTE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; Jesus CONTRERAS, Real Party in Interest.

Page 72

21 Cal.Rptr.2d 72

5 Cal.4th 689, 854 P.2d 721

Franklin PRIVETTE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent;

Jesus CONTRERAS, Real Party in Interest.

No. S024758.

Supreme Court of California,

In Bank.

July 19, 1993.

As Modified on Denial of Rehearing Sept. 16, 1993.

Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Mark G. Bonino and Justice C. McPherson, Redwood City, for petitioner.

Horvitz & Levy, David M. Axelrad, Christine T. Hoeffner, Encino, Sedgwick, Detert, Moran & Arnold and Frederick D. Baker, San Francisco, as amici curiae on behalf of petitioner.

No appearance for respondent.

Seltzer & Cody, Christopher T. Cody and Richard Seltzer, Oakland, for real party in interest.

KENNARD, Justice.

Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others. By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caused by inherently dangerous work will be compensated, that the person for whose benefit the contracted work is done bears responsibility for any risks of injury to others, and that adequate safeguards are taken to prevent such injuries. Courts differ, however, on the propriety of extending the doctrine to the contractor's own employees. A minority of jurisdictions, including California, have permitted such employees to seek recovery from the person who hired the contractor. But the decisions of this court by which the minority rule has become established in California have never addressed the potential conflict between the peculiar risk doctrine, as applied in favor of the contractor's employees, and the system of workers' compensation. Today, this court for the first time directly confronts this issue.

When an employee of the independent contractor hired to do dangerous work suffers a work-related injury, the employee is entitled to recovery under the state's workers' compensation system. That statutory scheme, which affords compensation regardless of fault, advances the same policies that underlie the doctrine of peculiar risk. Thus, when the contractor's failure to provide safe working conditions results in injury to the contractor's employee, additional recovery from the person who hired the contractor--a nonnegligent party--advances no societal interest that is not already served by the workers' compensation system. Accordingly, we join the majority of jurisdictions in precluding such recovery under the doctrine of peculiar risk.

I

Franklin Privette hired Jim Krause Roofing, Inc. (hereafter Krause) to install a new tar and gravel roof on his duplex. Using a kettle and pumping device parked in a driveway next to the duplex, the roofing crew transported hot tar to the roof. When the gravel truck arrived, the crew moved the kettle and pumping device to make room for the truck.

After the gravel was deposited on the roof, crew members realized they needed 50 more gallons of tar to complete the job. The foreman then directed employee Jesus Contreras to carry 10 five-gallon buckets of hot tar up a ladder to the roof. While performing this task, Contreras fell off the ladder and was burned by hot tar.

Contreras sought workers' compensation benefits for his injuries. He also sued Privette, the owner of the duplex, alleging two theories of recovery: that Privette had been negligent in selecting Krause as a roofer; and that, because of the inherent danger of working with hot tar, Privette should, under the doctrine of peculiar risk, be liable for injuries to Contreras that resulted from Krause's negligence.

In a pretrial motion for summary judgment (Code Civ.Proc., § 437c), Privette sought termination of Contreras's action. Among the arguments Privette made was that the availability of workers' compensation to Contreras for injuries resulting from his employer's conduct should bar him from any recovery from Privette under the doctrine of peculiar risk. ¹ In support of his motion, Privette presented these undisputed facts: Privette, a school teacher, owned some rental properties, including the duplex where roofing employee Contreras was injured. Privette had hired the Krause roofing firm to reroof his duplex only after checking references and determining that Krause was licensed and carried workers' compensation insurance for its employees. Privette was not present when Contreras was injured during the roofing process, nor did he participate in the foreman's decision to have Contreras carry buckets of hot tar up a ladder to the roof.

The trial court denied Privette's motion for summary judgment. Following Privette's unsuccessful attempt to obtain relief from the Court of Appeal, we granted his petition for review and issued an alternative writ to determine the applicability of the peculiar risk doctrine in this case.

II

At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work. (Prosser & Keeton on Torts (5th ed. 1984) § 71, p. 509 [hereafter Prosser]; see S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350, 256 Cal.Rptr. 543, 769 P.2d 399.) Central to this rule of nonliability was the recognition that a person who hired an independent contractor had " 'no right of control as to the mode of doing the work contracted for.' " (Greene v. Soule (1904) 145 Cal. 96, 99, 78 P. 337; accord, McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788, 285 P.2d 902.) The reasoning was that the work performed was the enterprise of the contractor, who, as a matter of business convenience, would be better able than the person employing the contractor to absorb accident losses incurred in the course of the contracted work. This could be done, for instance, by indirectly including the cost of safety precautions and insurance coverage in the contract price. (Fleming, An Introduction to the Law of Torts (1967) pp. 172-173 [hereafter Fleming]; Prosser, supra, § 71, at p. 509; Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 250, 66 Cal.Rptr. 20, 437 P.2d 508.)

Over 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." ' " (Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 252, 66 Cal.Rptr. 20, 437 P.2d 508, quoting Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co. (1937) 201 Minn. 500 ; Rest.2d Torts, §§ 410-429 and § 409, com. b, at p. 370 [describing the nonliability rule as " 'general' only in the sense that it is applied where no good reason is found for departing from it"].) One of these exceptions pertains to contracted work that poses some inherent risk of injury to others. This exception is commonly referred to as the doctrine of peculiar risk.

The origins of this doctrine can be traced to roughly the latter half of the nineteenth century, when a growing recognition developed in the courts that a landowner who chose to undertake inherently dangerous activity on his land should not escape liability for injuries to others simply by hiring an independent contractor to do the work. As a leading English decision from 1876 put it: "[A] man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise ... cannot relieve himself of his responsibility by employing some one else...." (Bower v. Peate (1876) 1 Q.B.D. 321, 326.) In that case, the English court held a landowner liable for damages to his neighbor's property when an independent contractor hired by the landowner to tear down an old house on his land and to build a new one on the same site, but with a deeper foundation, undermined the ground supporting the neighbor's house. (Id. at pp. 323, 324-327.)

Interestingly, 14 years earlier, in 1862, the United States Supreme Court had articulated similar reasoning in imposing liability on a landowner. (Chicago v. Robbins (1862) 67 U.S. (2 Black) 418, 426-427, 17 L.Ed. 298.) In that case, a landowner had a contractor construct a building on his land. In the course of the work, the contractor excavated the adjoining city sidewalk and left the hole uncovered. A passerby fell into the hole, and sought recovery from the landowner for the resulting injuries. In holding the owner liable for the contractor's negligence, the high court reasoned that the injury had been caused "by the very nuisance which [the landowner] ha[d] created for his own benefit." (Id. at p. 427.)

The courts adopted the peculiar risk exception to the general rule of nonliability 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. (See Note, Liability to Employees of Independent Contractors Engaged in Inherently Dangerous Work: A Workable Workers' Compensation Proposal (1980) 48 Fordham L.Rev. 1165, 1176-1178 [hereafter A Workable Proposal ]; see also Comment, The Peculiar Risk Doctrine: A Criticism of Its Application in California (1988) 22 U.C. Davis L.Rev. 215, 222 [hereafter Comment].) It was believed that as between two parties innocent of any personal wrongdoing--the person who contracted for the work and the hapless victim of the contractor's negligence--the risk of loss occasioned by the contracted work was more fairly allocated to the person for whose benefit the job was undertaken. (Fleming, supra, p. 173.) Also, by spreading the risk of loss to the person who primarily benefited from the hired work, the courts sought to promote workplace safety, a concern...