Kinsman v. Unocal Asbestos case: Discussion of Toland

Read the discussion in the Kinsman v. Unocal asbestos case, where the Toland case is discussed in relation to other cases.

Several cases after Privette extended and elaborated upon its doctrine. In Toland, supra, 18 Cal.4th 253, we rejected a hirer’s liability to an independent contractor’s employee under Restatement Second of Torts, section 413.

This provides that 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, could be held liable for the resultant injury.

The plaintiff attempted to distinguish section 413 from section 416 at issue in Privette, which imposes liability for peculiar risks “even though the employer has provided for [special] precautions in the contract or otherwise.”

The plaintiff argued that section 416 imposed vicarious liability whereas in section 413 liability was direct. We disagreed: “[P]eculiar risk liability is not a traditional theory of direct liability for the risks created by one’s own conduct:

Liability under both sections 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 has caused the injury by failing to use reasonable care in performing the work.”

Therefore, “contrary to plaintiff Toland’s assertion, our decision in Privette, supra, 5 Cal.4th 689, bars employees of a hired contractor who are injured by the contractor’s negligence from seeking recovery against the hiring person, irrespective of whether recovery is sought under the theory of peculiar risk set forth in section 416 or section 413 of the Restatement Second of Torts.

In either situation, 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.”

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

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