Kinsman v. Unocal Asbestos case: The Theory in Toland

Read the discussion in the Kinsman v. Unocal asbestos case, where Unocal argues the Toland “superior knowledge” theory.

Unocal argues that Toland not only rejected the “superior knowledge” theory, but held that the hirer’s liability as a landowner to the independent contractor is limited to instances of fraudulent concealment, and that there is no evidence of fraudulent concealment in the present case. As Toland stated:

“Our decision in no way precludes employees of independent contractors from seeking recovery from a general contractor or other hiring person for personal injury resulting from a failure to disclose a concealed preexisting danger at the site of the hired work that was known to the hiring person.

Recovery in such a case would be for fraudulent concealment or misrepresentation, however, and would not involve the ‘comparative knowledge’ analysis proposed by the concurring and dissenting opinion, nor would it depend on the peculiar risk doctrine.”

The above statement, while correct, is incomplete. “It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.”

Toland did not involve premises liability for latent hazards, and the court had no occasion to decide the precise conditions under which such liability would attach. (Toland, supra, 18 Cal.4th at p. 257 [plaintiff injured while helping to raise a heavy wall during the construction project].)

As explained above, landowner liability in this instance is measured by a negligence standard, and therefore a landowner would be liable not only when it deliberately withholds information but also when it negligently fails to discover or disclose latent hazards.

Therefore, the element of fraudulent intent required in fraudulent concealment cases is not necessary for premises liability in the present circumstances.

Courtesy of http://www.courtinfo.ca.gov/opinions/archive/S118561.PDF

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