collecting cases and observing that the “overwhelming majority of the courts of other jurisdictions that have addressed the question have concluded that an employee of a contractor - 15 - is not a third person for the purposes of section 411” (emphasis in original)
How later courts described this case
- collecting cases and observing that the “overwhelming majority of the courts of other jurisdictions that have addressed the question have concluded that an employee of a contractor - 15 - is not a third person for the purposes of section 411” (emphasis in original)
- holding that “an employee of an independent contractor [is barred] from bringing a negligent hiring action against the hirer of the contractor”
- ruling that a contractor's employee cannot sue the contractor's hirer under the "negligent hiring" theory set forth in section 411
- applying the peculiar risk analysis of Privette to section 410, negligent hiring, and holding hirer not liable for the negligent performance of a hired contractor for injuries to the contractor’s employees
Written by the judges who cited it.
Distinguished
Distinguished by McKown v. Wal-Mart Stores, Inc., 115 Cal. Rptr. 2d 868 (2002)
In Camargo, we rejected the argument that Privette and Toland were distinguishable on the ground that in a negligent hiring case the hirer is, in a sense, being taxed with his own negligence, making his liability direct. “[T]he same could be said with regard to an action brought under the peculiar risk theory set forth in section 413.
The opinion
WERDEGAR, J.
I concur under the compulsion of Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 [ 74 Cal.Rptr.2d 878 , 955 P.2d 504 ] (Toland). If, as the majority held in Toland , the hirer’s responsibility for its own negligence under the peculiar risk theory embodied in section 413 of the Restatement Second of Torts is deemed so “ ‘vicarious’ or ‘derivative’ ” (Toland, supra, at p. 265 ) that to recognize tort liability for the results of that negligence would be “unfair” (id. at p. 267), the same must be said of the hirer’s liability for its own negligence in choosing an unqualified contractor (Rest.2d Torts, § 411).
In a separate opinion in Toland , I took issue with the majority’s blanket approach, arguing that in some cases of peculiar risk negligence the hirer, rather than the contractor, will have the superior knowledge of, or ability to control, the circumstances creating a risk of injury, and that in those cases imposing tort liability on the hirer would be both fair and economically efficient despite the contractor’s limited liability under the workers’ compensation law. ( Toland, supra, 18 Cal.4th at pp. 271, 275-280 (conc. & dis. opn. of Werdegar, J.).) The same could be said of the negligent hiring theory *1246 raised in this case, but, in light of the majority’s adherence here to its Toland approach, the point is moot.
An odd aspect of the majority opinion here, as in Toland , is its partial reliance on very broad arguments that, if given their full logical scope, would seem to bar virtually all liability on the part of hirers for injuries to contractors’ employees, however direct and personal the hirer’s negligence, while the majority nonetheless disavows so general a scope for its holding. (See maj. opn., ante, at pp. 1244-1245 & fn. 2; Toland, supra, 18 Cal.4th at pp. 281-282 (conc. & dis. opn. of Werdegar, J.).) Whether these arguments are merely makeweights, or are the majority’s true ground of decision, will, perhaps, be revealed when the court considers theories of hirer liability that cannot with any plausibility be deemed vicarious or derivative, such as those raised in the cases mentioned in footnote 2 of the majority opinion.