Kinsman v. Unocal asbestos case: Application and the Toland majority

Read the discussion in the Kinsman v. Unocal asbestos case, where the application of the majority in Toland is discussed.

The Toland majority concluded that the standard was impractical and would undermine the Privette doctrine. (Toland, supra, 18 Cal.4th at p. 268.) “The term ‘superior knowledge’ has superficial appeal when considered in the abstract, but its practical application presents considerable difficulties.

How is a trier of fact to determine whether to impose liability based on the relative knowledge of two parties, each of whom is ‘knowledgeable’ in some form or degree? Must the general contractor’s knowledge be ‘superior’ with regard to industry practices or must it be ‘superior’ with regard to the actual instrumentality of the injury?

Does a general contractor with 25 years of experience in the construction industry possess greater or lesser knowledge than a subcontractor with 5 years of experience in a particular building trade? There is little basis on which a jury could sensibly impose liability using the concurring and dissenting opinion’s ‘comparative knowledge’ rule.”

The majority concluded: “In the end, the concurring and dissenting opinion would effectively deprive general contractors of a right available to any other hiring person: the right to delegate to independent contractors the responsibility of ensuring the safety of their own workers.”

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