Kinsman v. Unocal Asbestos case: Discussion of Camargo

Read the continuation of the discussion in the Kinsman v. Unocal asbestos case, where Privette and Camargo are discussed.

In Camargo, supra, 25 Cal.4th 1235, “we held that an employee of a contractor is barred from suing the hirer of the contractor under the negligent hiring theory set forth in [the Restatement Second of Torts,] section 411.

Under section 411, a hirer is liable for physical harm to third persons caused by the hirer’s failure to exercise reasonable care to employ a competent contractor to perform work that will involve a risk of physical harm unless it is skillfully and carefully done, or to perform any duty the hirer owes to third persons.

More importantly, under both sections 411 and 413, the liability of the hirer is “in essence ‘vicarious’ or ‘derivative’ in the sense that it derives from the ‘act or omission’ of the hired contractor, because it is the hired contractor who caused the injury by failing to use reasonable care in performing the work.”

Therefore, in a negligent hiring case under the theory set forth in section 411, just as in peculiar risk cases under the theories set forth in sections 413 and 416, “it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker’s on-the-job injuries, is limited to providing workers’ compensation coverage.”

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