Toland v. Sunland Housing Group, Inc.

• Decision Date: 01 June 1998
• Docket Number: No. S050870,S050870
• Court: California Supreme Court
• Parties: , 955 P.2d 504, 63 Cal. Comp. Cases 508, 98 Cal. Daily Op. Serv. 4119, 98 Daily Journal D.A.R. 5699 Timothy TOLAND, Plaintiff and Appellant, v. SUNLAND HOUSING GROUP, INC., Defendant and Respondent

Page 878

74 Cal.Rptr.2d 878

18 Cal.4th 253, 955 P.2d 504, 63 Cal. Comp. Cases 508,

98 Cal. Daily Op. Serv. 4119,

98 Daily Journal D.A.R. 5699

Timothy TOLAND, Plaintiff and Appellant, v. SUNLAND HOUSING GROUP, INC., Defendant and Respondent.

No. S050870.

Supreme Court of California

June 1, 1998.

Hefner, Stark & Marois, Robert P. Biegler and Stephen S. Talt, Sacramento, for Plaintiff and Appellant.

Stanley J. Bell, San Francisco, Ian Herzog, Santa Monica, Douglas Devries, Sacramento, Leonard Sacks, Granada Hills, Bruce Broillet, Santa Monica, Harvey Levine, Fremont, Ronald Wrinkle, William D. Turley, San Diego, Steven Kleifield, Los Angeles, David A. Rosen, Los Angeles, Tony Tanke, Redwood City, Mary E. Alexander, San Francisco, David Casey, Santa Ana, Robert B. Steinberg Los Angeles, Stoplman, Krissman, Elber, Mandel & Katzman, Dennis M. Elber, Thomas G. Stolpman, Long Beach, Rose, Klein & Marias, David A. Rosen, Los Angeles, The Arns Law Firm, Robert S. Arns, San Francisco, and Morgan C. Smith as Amici Curae on behalf of Plaintiff and Appellant.

Shepard & Haven, Kenneth B. Shepard and Karen E. Halbo, Sacramento, for Defendant and Respondent.

William M. McMillan, Sacramento, George Cory, Sacramento, Kenneth G. Nellis, Sedgwick, Detert, Moran & Arnold, Frederick D. Baker, Kirk C. Jenkins, San Francisco, Schaffer & Lax, Clifford L. Schaffer, Los Angeles, Horvitz & Levy, David M. Axelrad, Stephen E. Norris, John Gueli, Encino, Thelen, Marrin, Johnson & Bridges, Philip R. Placier, Jennifer Kuenster, Kevin O'Brien, San Francisco, Crosby, Heafey, Roach & May, Ezra Hendon and Kathy M. Banke, Oaklnd, as Amici Curiae on behalf of Defendant and Respondent.

KENNARD, Justice.

Under the doctrine of peculiar risk, a person who hires an independent contractor to do inherently dangerous work can be held liable for tort damages when the contractor causes injury to others by negligently performing the work. The doctrine serves to ensure that innocent bystanders or neighboring landowners injured by the hired contractor's negligence will have a source of compensation even if the contractor turns out to be insolvent. As we explained in Privette v. Superior Court (1993) 5 Cal.4th 689, 694, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Privette), courts created the peculiar risk doctrine in the belief 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."

In Privette, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, we unanimously held that under the peculiar risk doctrine the hiring person's liability does not extend to the hired contractor's employees. Because the Workers' Compensation Act (Lab.Code, § 3200 et seq.) shields an independent contractor from tort liability to its employees, applying the peculiar risk doctrine to the independent contractor's employees would illogically and unfairly subject the hiring person, who did nothing to create the risk that caused the injury, to greater liability than that faced by the independent contractor whose negligence caused the employee's injury. (5 Cal.4th at pp. 698-700, 21 Cal.Rptr.2d 72, 854 P.2d 721.) As we concluded: "[T]he property owner should not have to pay for injuries caused by the contractor's negligent performance of the work when workers' compensation statutes already cover those injuries." (Id. at p. 699, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

The doctrine of peculiar risk, as relevant here, is described in two sections of the Restatement Second of Torts, section 413 and section 416. Under section 413, a person who hires an independent contractor to do inherently dangerous work, but who fails to provide in the contract or in some other manner that special precautions be taken to avert the peculiar risks of that work, can be liable if the contractor's negligent performance of the work causes injury to others. Under section 416, even if the hiring person has provided for special precautions "in the contract or otherwise," the hiring person can nevertheless be liable if the contractor fails "to exercise reasonable care to take such precautions" and the contractor's performance of the work causes injury to others. There has been some disagreement in the trial courts and the Courts of Appeal whether Privette, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, bars recovery only in actions brought under section 416, or also under the theory of peculiar risk described in section 413. Here, a subcontractor's employee sued the general contractor for on-the-job injuries, asserting that Privette did not bar recovery under section 413. The Court of Appeal disagreed, holding that Privette barred recovery under section 413 as well as section 416. We affirm the decision of the Court of Appeal.

I

In December 1992, Timothy Toland was working for framing contractor CLP Construction Inc. (CLP) at a housing development under construction. While helping other CLP employees in raising a large and heavy framed wall, Toland was injured when the wall fell on him. The project's owner and general contractor was Sunland Housing Group, Inc. (Sunland).

Toland sought recovery from his employer CLP under the Workers' Compensation Act. He also sued Sunland, alleging that raising the wall created a peculiar risk of injury for which Sunland should have required subcontractor CLP to take special precautions.

Sunland moved for summary judgment in the trial court, asserting that Toland's action was barred under this court's then recent decision in Privette, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721. In opposing the motion, Toland argued that Privette had eliminated peculiar risk liability for employees of independent contractors only in actions based on section 416 of the Restatement Second of Torts (hiring person liable for contractor's negligence in spite of providing that the contractor take special precautions), but that Privette had no effect on an action such as his, which was brought under section 413 (hiring person who fails to provide for special precautions liable for contractor's negligence).

The trial court entered summary judgment for Sunland. The Court of Appeal affirmed.

II

We begin with a brief overview of the doctrine of peculiar risk and the treatment of that doctrine in sections 413 and 416 of the Restatement Second of Torts. We then discuss our decision in Privette, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, as well as the Court of Appeal cases that have considered whether Privette bars recovery only under section 416 or also under section 413.

A. The Doctrine of Peculiar Risk

Under the doctrine of peculiar risk, one injured by inherently dangerous work performed by a hired contractor can seek tort damages from the person who hired the contractor. (Privette, supra, 5 Cal.4th at p. 693, 21 Cal.Rptr.2d 72, 854 P.2d 721.) The doctrine provides an exception to the common law rule that an individual who hires an independent contractor generally is not liable for injuries to others caused by the contractor's negligence in performing the hired work. (Ibid.) The courts created this exception in the late 19th century to ensure that innocent third parties injured by inherently dangerous work performed by an independent contractor for the benefit of the hiring person could sue not only the contractor, but also the hiring person, so that in the event of the contractor's insolvency, the injured person would still have a source of recovery. (Id. at pp. 693-694, 21 Cal.Rptr.2d 72, 854 P.2d 721.)

In determining the applicability of the doctrine of peculiar risk, a critical inquiry "is whether the work for which the contractor was hired involves a risk that is 'peculiar to the work to be done,' arising either from the nature or the location of the work and ' "against which a reasonable person would recognize the necessity of taking special precautions." ' (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 509, 156 Cal.Rptr. 41, 595 P.2d 619, quoting Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 586, 153 Cal.Rptr. 213, 591 P.2d 503; Rest.2d Torts, § 413, com. b; id., § 416, com. b.)" (Privette, supra, 5 Cal.4th at p. 695, 21 Cal.Rptr.2d 72, 854 P.2d 721, italics added.)

A peculiar risk need not be one that would inevitably arise in the course of the work. " 'It is sufficient that it is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of the work, or the particular method which the employer knows that the contractor will adopt.' " (Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 586, 153 Cal.Rptr. 213, 591 P.2d 503, quoting Rest.2d Torts, § 416, com. e, p. 397; see also Mackey v. Campbell Construction Co. (1980) 101 Cal.App.3d 774, 785-786, 162 Cal.Rptr. 64 ["Where the employer should recognize that a risk is likely to arise as a result of a method of work which the employer knows that the contractor will adopt, this is clearly a peculiar risk within the rule. [Citation.] A peculiar risk may arise out of a contemplated and unsafe method of work adopted by the independent contractor."].)

Even when the work presents a special or peculiar risk of harm, the person who hired the contractor will not be liable for injury to others if the injury results from the contractor's "collateral" or "casual" negligence. (Aceves v. Regal Pale Brewing, Co. (1979) 24 Cal.3d 502, 510, 156 Cal.Rptr. 41, 595 P.2d 619; Prosser & Keeton on Torts (5th ed. 1984) § 71, pp. 515-516; Rest.2d Torts, § 426.) Negligence is collateral when it involves an "operative detail of the work, as distinguished from the general plan or method to be followed." (Aceves v. Regal Pale Brewing Co., supra, at p. 510, 156 Cal.Rptr. 41, 595 P.2d 619.) But, as we have recognized, "it is...