# Toland v. Sunland Housing Group, Inc.

> California Supreme Court · June 1, 1998 · 74 Cal. Rptr. 2d 878

URL: https://www.frixlaw.com/law-library/cases/9579166

## Case

- **Full name:** TIMOTHY TOLAND, Plaintiff and Appellant, v. SUNLAND HOUSING GROUP, INC., Defendant and Respondent
- **Court:** California Supreme Court
- **Decided:** June 1, 1998
- **Citations:** 74 Cal. Rptr. 2d 878; 18 Cal. 4th 253; 98 Daily Journal DAR 5699; 955 P.2d 504; 63 Cal. Comp. Cases 508; 98 Cal. Daily Op. Serv. 4119; 1998 Cal. LEXIS 3191
- **Precedential status:** Published
- **Opinion:** Concurring in part by Werdegar
- **Judges:** Kennard, Werdegar
- **Cited by:** 83 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9579166

## How later opinions describe it (automated extraction)

- holding that Privette bars all actions against an independent contractor’s employee against the hirer under the peculiar risk doctrine, provided that employee’s injuries are subject to workers’ compensation coverage

## Opinion text

WERDEGAR, J.,
Concurring and Dissenting.—I concur in the majority’s result, but respectfully disagree with much of its rationale. I write separately to set forth my view of the applicable law.
*271 Our task is to delineate the duty, if any, the hirer 1 of an independent contractor owes to protect the contractor’s employees against inherent risks of the work for which the contractor was hired. Plaintiff contends the duty extends to. all peculiar risks of the work, and the hirer is therefore responsible, under the theory embodied in section 413 of the Restatement Second of Torts, 2 for any injury to an employee resulting from the hirer’s failure to require that the contractor take special precautions against a peculiar risk. Defendant contends, and the majority of this court holds, that the hirer bears no duty to protect a contractor’s employees against special risks of the work; the majority deems any application of section 413’s theory to an employee plaintiff inconsistent with the holding and reasoning of Privette v. Superior Court (1993) 5 Cal.4th 689 [ 21 Cal.Rptr.2d 72 , 854 P.2d 721 ] (Privette).
I would adopt a third view: The hirer does owe the contractor’s employees a duty to ensure the taking of measures essential to avoid special risks of the work, but that duty extends only to those risks and precautions as to which the hirer’s knowledge or control is superior to that of the contractor. An independent contractor, in my view, should be solely responsible for his or her own negligence in failing to protect workers against those dangers that are within the actual or constructive knowledge and control of the contractor. The hirer, having engaged a presumably competent independent contractor to perform the work, is normally not obliged to oversee the job’s performance or set out all the safety measures the contractor should take. In this I agree with the majority. But, when conditions within the special knowledge or control of the hirer create a danger inherent and peculiar to the work, there is no justification in statute, policy or precedent to immunize the hirer from tort liability for his or her own failure to require reasonable precautions be taken against the danger. Tort liability for injuries to the contractor’s employees should, therefore, be recognized only when the hirer “was in a better position than the contractor either to anticipate dangers to workmen, to foresee and evaluate the best methods of protection, or to implement and enforce compliance with appropriate on-site safety precautions.” (Nelson v. United States (9th Cir. 1980) 639 F.2d 469, 478 (Nelson).)
Because the record in this case shows the general contractor here was not better positioned than the framing subcontractor to know of, evaluate or protect against the risks of raising the wall unit, I concur in the affirmance of summary judgment for the defendant general contractor.
*272 I
As a general rule, the hirer of an independent contractor is not liable in tort for injuries caused by the contractor’s work. The common law, however, recognizes numerous sets of circumstances that lie outside that rule, including two, both adopted in California, that involve the “special” or “peculiar” risks created by inherently dangerous work. Section 413 embodies the theory of peculiar risk liability plaintiff relies upon here: The hirer is responsible for injuries caused by the failure of the contractor to take needed precautions against a special risk if the hirer is or should be aware of the risk and “(a) fails to provide in the contract that the contractor shall take such precautions, or [H] (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.” Section 416 also involves peculiar risks, but is much broader: It subjects the hirer to liability whether or not the hirer has provided in the contract, or by other means, that the contractor should take the needed precautions against a special risk of the work. 3
Section 413 recognizes a theory of personal negligence not resting on vicarious responsibility for the torts of another. “In the first place, quite apart from any question of vicarious responsibility, the employer may be liable for any negligence of his own in connection with the work to be done. Where there is a foreseeable risk of harm to others unless precautions are taken, it is his duty to exercise reasonable care to . . . provide, in the contract or otherwise, for such precautions as reasonably appear to be called for.” (Prosser & Keeton on Torts (5th ed. 1984) § 71, p. 510, fns. omitted.) In this fundamental respect, which the majority opinion largely ignores, the theory of liability recognized in section 413 differs from that of section 416.
Official notes to the Restatement, and cases from this and other courts adopting the Restatement theories of liability, make amply clear that section 413 liability rests directly on the personal negligence of the hiring party itself, while section 416 liability is vicarious in nature. In a note introducing the various bases of a hirer’s liability for the acts of a contractor, the Restatement authors explain that the liability described in sections 410 to *273 415 has its principal application when, as stated in section 409, the hirer is not responsible for the contractor’s negligence: “In such a case, the [hirer’s] liability must be based upon his own personal negligence in failing . . . [e.g.,] to exercise reasonable care to provide for the taking of such precautions, either by the contractor whom he employs or otherwise, as in advance are recognizable as necessary to enable the work to be safely done (see § 413) . . . (Rest.2d Torts, ch. 15, topic 1, introductory note, p. 371, italics added.) On the other hand, the liability rules stated in sections 416 to 429, “unlike those stated in the preceding §§ 410-415, do not rest upon any personal negligence of the employer. They are rules of vicarious liability, making the employer liable for negligence of the independent contractor, irrespective of whether the employer has himself been at fault.” (Rest.2d Torts, ch. 15, topic 2, introductory note, p. 394, italics added.)
In Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 509 [ 156 Cal.Rptr. 41 , 595 P.2d 619 ] and Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 585-586 [ 153 Cal.Rptr. 213 , 591 P.2d 503 ] (both overruled on other grounds in Privette, supra, 5 Cal.4th 689 ), we reiterated earlier cases’ adoption of sections 413 and 416 and explained the two sections differed in that section 413 imposes “direct liability” on the hirer for failing to ensure that needed precautions were taken. As the court in Stilson v. Moulton-Niguel Water Dist. (1971) 21 Cal.App.3d 928, 938 [ 98 Cal.Rptr. 914 ] succinctly explained, “Section 413 makes the employer of the independent contractor directly liable for his own negligence, while section 416 imposes a vicarious liability for the negligence of the independent contractor.” (Accord, Addison v. Susanville Lumber, Inc. (1975) 47 Cal.App.3d 394, 399 [ 120 Cal.Rptr. 737 ]; Owens v. Giannetta-Heinrich Construction Co. (1994) 23 Cal.App.4th 1662, 1667 [ 29 Cal.Rptr.2d 11 ]; United States v. DeCamp (9th Cir. 1973) 478 F.2d 1188, 1193, fn. 3 [Section 413 “imposes direct liability upon the employer of an independent contractor if the employer himself fails to take appropriate special precautions. This section thus contrasts sharply with Section 416, which imposes vicarious liability on the employer for the negligence of the independent contractor.”].) Thus, “[s]ection 413 . . . is a theory of personal rather than vicarious liability. Liability is imposed for the failure of the employer itself to adequately provide for precautions against danger. . . . Restatement [section] 413 does not require the employer to protect the worker against the independent contractor’s negligence; nor does it impose vicarious liability under some idea of ‘non-delegable’ duty. It merely requires an employer to act in a reasonable manner in providing for precautions to be taken in work that involves a peculiar risk.” (Moloso v. State (Alaska 1982) 644 P.2d 205, 215 [ 29 A.L.R.4th 1165 ], fn. omitted.)
Recognizing that section 413 liability rests on personal negligence rather than vicarious responsibility does not, however, fully solve "the problem *274 before us; we must still decide the scope of the hirer’s duty. Under what circumstances, if any, will an omission on the hirer’s part be deemed negligent, making the hirer potentially liable to a contractor’s injured employee?
The federal court of appeals considered this question at length in Nelson, supra, 639 F.2d 469 , in an analysis I find persuasive. An employee of a contractor hired by the United States Coast Guard to repair a wave barrier in San Francisco Bay was drowned while working atop the barrier. The employee’s widow sued the federal government, alleging the Coast Guard negligently failed to specify adequate safety precautions for the inherently dangerous work to be done on the barrier. The court, applying and developing the federal common law of maritime injuries, analyzed the plaintiff’s claim against the United States under the section 413 theory of liability. (Nelson, supra, at p. 474 .)
The appellate court, finding precedent divided on the application of section 413 to contractors’ employees, returned to first principles. “The independent contractor exception to the doctrine of respondeat superior rests on the general tort principle that in different circumstances different parties to the employment relation will know best how to avoid an accident and to weigh the costs and benefits of various precautions as against the costs and probability of the accident to be avoided.” (Nelson, supra, 639 F.2d at p. 475 .) In most circumstances, the contractor, rather than the hirer, will be the best accident avoider, since an independent contractor, by definition, is generally responsible for planning and executing the details of contractual performance. “In some cases, however, the job the owner contracts out is ‘likely to create ... a peculiar unreasonable risk of physical harm.’ Restatement (Second) of Torts § 413 (1965). In these cases there is a special reason to place initial responsibility on the [hirer] if he is ‘more likely to consider the risk’ and better able to assess ways to mitigate the risk. Calabresi, Optimal Deterrence and Accidents, 84 Yale L.J. 656 (1975).” (Nelson, supra, at p. 476 .)
The Nelson court therefore concluded that application of the section 413 theory to contractors’ employees should depend “on the relation between the owner[-hirer] and the contractor.” (Nelson, supra, 639 F.2d at p. 476 .) In the case before it, the court held section 413 liability should not be imposed because there was no evidence “that the Government was in a better position than the contractor either to anticipate dangers to workmen, to foresee and evaluate the best methods of protection, or to implement and enforce compliance with appropriate on-site safety precautions.” ( 639 F.2d at p. 478 .) The Nelson* approach was followed in Peone v. Regulus Stud Mills, Inc. *275 (1987) 113 Idaho 374 [ 744 P.2d 102 ], which held a lumber mill was not liable on either peculiar risk theory (section 413 or 416) for injuries caused by a falling snag (dead tree) to an employee of the logging company the sawmill had hired to cut and deliver certain timber. “The logging contractor is in a better position ... to assess this risk [of a falling snag]. The logging contractor, when removing timberf,] will almost always be faced with problems of dead and diseased trees which create a danger to anyone working in the area. ... A sawmill operator, simply by having timber rights on someone else’s land, does not have special knowledge about the risks of falling snags on that land.” ( 744 P.2d at p. 107 ; see also Sierra Pacific Power Co. v. Rinehart (1983) 99 Nev. 557 [ 665 P.2d 270, 274 ] [applying Nelson rationale; contractor hired to build cooling tower had special skills and experience in such construction and was better able to take special precautions against risks; hirer therefore not liable to contractor’s worker who fell from tower during construction]; Tauscher v. Puget Sound Power & Light Co. (1981) 96 Wn.2d 274 [ 635 P.2d 426, 429 ] [holding peculiar risk liability ordinarily does not extend to contractors’ employees, but recognizing a possible exception “when the owner or general contractor knows of inherent hazards of the work, and is in a position to protect against them.”].)
In my view, the Nelson approach properly allocates liability for injuries suffered by employees of an independent contractor. In most circumstances, the hirer will have discharged his or her duty of care by selecting a competent contractor, leaving to that contractor the task of assessing and taking precautions against the dangers to its workers. “As long as an independent contractor is informed about particular safety risks, and is competent and solvent, there is no reason in law or policy why he alone should not be fully responsible for injuries to workmen arising out of the performance of inherently dangerous jobs in which the contractor has special skill and experience not shared with the owner.” {Nelson, supra, 639 F.2d at p. 478 .) But in the less common case, where it is the hirer who possesses special knowledge of the risks or the better opportunity to assess and require implementation of the necessary safety measures, section 413 properly recognizes the hirer’s duty to take reasonable measures for the workers’ protection.
The majority’s holding that section 413 is completely inapplicable to injuries to a contractor’s employees rests on the false premise that in section 413 cases the contractor is necessarily negligent and the hirer nonnegligent. To the contrary, section 413 liability involves the hirer’s breach of its own duty of due care and does not depend on negligence on the part of the contractor. In some cases the hirer may have far superior knowledge or *276 notice of the risks than the contractor and be better able to take or order the necessary precautions. On a construction project, for example, the hirer, whether landowner, general contractor or both, may have reason to know of special risks, arising, e.g., from a condition of the property, unusual characteristics of the construction design or the work of other subcontractors, risks a particular subcontractor could not be expected to consider or take measures against. The contractor (or subcontractor) in such a case would not be negligent in failing to take precautions, but, under the section 413 theory, liability would nonetheless lie against the hirer premised on the hirer’s own negligence.
Moloso v. State, supra, 644 P.2d 205 provides a good illustration. In Moloso , the Alaska Department of Transportation commissioned a geotechnical study for a planned highway project. The study found the rock face that was to be excavated had characteristics making it especially prone to sliding if certain precautions (rock bolting, top-down excavation and loose rock removal) were not taken. The study’s author recommended that such precautions be included in the bid specifications, a stability inspector be retained for the project, and a prebid conference be held with all potential bidders to discuss the necessary precautions. (Id. at p. 209.) The state did not hold a prebid meeting, did not retain a full-time stability inspector, did not include all the recommended precautions in the specifications, and ultimately accepted the chosen general contractor’s “ ‘value engineering proposal’ ” for an alternative (outside of specifications) plan requiring a steeper cut and bottom-up excavation. (Id. at pp. 209-210.) The plaintiffs’ decedents, equipment operators for the excavation subcontractor, were killed by a rock slide in the course of the excavation work. (Id. at p. 210.)
To say, in the Moloso circumstances, that the excavation subcontractor was “primarily responsible” (maj. opn., ante, at p. 267) because it actually performed the work, and the state’s responsibility was therefore “vicarious” or “derivative” (id. at p. 265), would distort the circumstances of the case. The special danger of the work in Moloso was inherent in the project as contracted, not the result of any carelessness in the excavation subcontractor’s performance. Whether the subcontractor even knew or had notice of the special danger inherent in the plan proposed by the general contractor and approved by the department of transportation is unclear. But whether or not the subcontractor could be considered negligent in undertaking the work without additional precautions, the department’s approval of a project plan that ignored special risks of which the department was actually aware and its failure then to direct that other precautions be taken, was, if unjustified by the cost savings or otherwise, personal negligence on the department’s part, not “derivative” of any fault the subcontractor might have borne. Moreover, *277 as the entity responsible for selecting the overall plan of work and being in the best position to assess the dangers of the alternative plans, the department was the entity best able to avoid accidents by making the risks known and specifying the safety measures to be taken. In'such circumstances, as the Moloso court held, the hirer is liable for employee injuries under the theory of personal negligence embodied in section 413. (Moloso v. State, supra, 644 P.2d at pp. 214-216.)
H
For the reasons given above, I would hold that a hirer with superior knowledge or control of a special risk or the precautions necessary to avoid it owes the contractor’s employees a duty to take reasonable steps to protect them against the risk, as recognized in section 413. Neither the exclusivity provisions of the workers’ compensation law, nor the holding or rationale of Privette, supra, 5 Cal.4th 689 , supports further limiting this duty of care.
Workers’ compensation is, of course, the exclusive remedy of the independent contractor’s employee against the contractor, assuming the contractor has properly secured payment of compensation. (Lab. Code, §§ 3600, 3602, 3706.) “On the other hand, the employee may sue any other responsible person for ‘all damages proximately resulting’ from the injury. (Id., § 3852.)” (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 598 [ 7 Cal.Rptr.2d 238 , 828 P.2d 140 ].) Under the California workers’ compensation law, hiring an independent contractor does not generally make the hirer an employer of the contractor’s employees for workers’ compensation purposes. (Blew v. Homer (1986) 187 Cal.App.3d 1380, 1387 [ 232 Cal.Rptr. 660 ].) California law differs in this respect from that of most other states, in which the workers’ compensation law deems the ¿mployees of a subcontractor to be employees of the general contractor for purposes of employer immunity from civil suit and, if the subcontractor is uninsured, the payment of compensation. (6 Larson, Workers’ Compensation Law (1997) § 72.31, pp. 14-197 to 14-232.) Whatever the merits of such “statutory employer” provisions as a matter of legislative policy, it is not the role of this court to institute any such sweeping expansion of a statutory scheme.
It is the province of this court to determine, in the absence of applicable statute, the circumstances under which one person must bear vicarious liability in tort for another person’s negligent acts and omissions. In Privette, supra, 5 Cal.4th 689 , we declined, for good reason, to impose such vicarious liability on the hirer of an independent contractor for the negligence of the contractor with respect to a peculiar risk of the work. Neither our holding in *278 that case, however, nor the sound reasons supporting it, provides sufficient grounds to carve out, as the majority proposes to do in this case, a judicially created exception to the general rule of responsibility for one's own negligence.
In Privette , a schoolteacher who owned a rental duplex hired a roofing company to replace the building’s roof. The plaintiff, one of the company’s workers, was injured when, at the foreman’s direction, he tried to carry buckets of hot tar up a ladder to the roof. Privette, the building owner, was not present at the time, and, as far as the opinion reveals, there was no evidence he had any roofing experience or any reason to appreciate any special risks of the work for which he hired the roofing company. We held the plaintiff could not hold Privette liable under the “peculiar risk doctrine.” { Privette, supra, 5 Cal.4th at pp. 692-693.)
In our introduction, we referred to the peculiar risk doctrine as imposing “liability without fault” on the hirer. {Privette, supra, 5 Cal.4th at p. 691 .) We stated without qualification that peculiar risk liability is “a form of vicarious liability” {id. at p. 695) and explained that imposing such liability on the hirer for injuries to the contractor’s employee would be anomalous because the “nonnegligent” hirer would bear civil liability for an accident, while the contractor, “whose negligence actually caused the injury,” would bear only the lesser burden of workers’ compensation. {Id. at p. 698.) Moreover, we explained, the hirer is barred by workers’ compensation exclusivity from obtaining equitable indemnity from the contractor. Thus, applying the peculiar risk doctrine would place a heavy burden on “someone who is ‘fault-free.’ ” {Id. at p. 701.) In conclusion, we declined to allow the injured employee to “seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.” {Id. at p. 702.)
A consistent theme thus runs through our discussion in Privette: The employee of an independent contractor should not be allowed to sue the hirer on a theory of vicarious liability for the contractor’s negligent acts or omissions. Since the facts of Privette presented only the vicarious liability theory (the opinion reflects no evidence Privette was personally negligent), we had no occasion in Privette to discuss or decide the hirer’s liability to employees of the contractor for the hirer’s own negligent acts or omissions. As a Court of Appeal panel recently concluded after a careful reading of the opinion, Privette’s reach “is limited to instances where the injured employee seeks to hold the hirer answerable in tort damages for the fault of the independent contractor.” {Grahn v. Tosco Corp., supra, 58 Cal.App.4th at p. 1388; see also Owens v. Giannetta-Heinrich Construction Co., supra, 23 Cal.App.4th at p. 1668 [“It is plain from the discussion in Privette that the *279 Supreme Court intended its holding to apply only in those situations where third party liability is vicarious rather than direct.”].)
Also important to our decision in Privette was the conclusion that the policies furthered by the peculiar risk doctrine were equally well served by the workers’ compensation system, making unnecessary the imposition of additional, vicarious liability on the hirer. The same cannot be said when liability is premised, under section 413, on the hirer’s negligent failure to take measures against a risk within his or her unique or superior knowledge or control. Although, as we observed in Privette , the contractor’s cost of securing compensation is likely to be passed through to the hirer in the contract price (Privette, supra, 5 Cal.4th at p. 699 ), that price does not reflect the costs of injuries inflicted by the hirer’s own failure to exercise reasonable care. In the case of personal negligence on the hirer’s part, therefore, workers’ compensation liability will not adequately serve the cost-intemalization and accident-prevention functions of tort law, as Privette argued it would do in the case of vicarious liability. {Id. at p. 701.) A general contractor who is relieved of tort liability for his or her own negligence in selecting, directing and supervising subcontractors will have less incentive to do so carefully, and the price of the general contractor’s services will not reflect the true social cost of production.
Finally, we relied in Privette on considerations of fairness as between the hirer and the independent contractor. Having already paid the cost of compensation in the contract price, we observed, the hirer should not also have to bear civil damages for an accident “caused by the contractor’s negligent performance,” especially since the contractor itself enjoys civil immunity. {Privette, supra, 5 Cal.4th at p. 699 .) But the same reasoning does not apply, of course, when the additional damages are caused by the hirer’s own negligent failure to protect against a danger specially known to the hirer or within his or her particular realm of control. “. . . Privette’s concern about the fundamental unfairness of imposing vicarious liability on a nonnegligent hirer is entirely inapplicable where the hirer’s own negligent conduct has caused or contributed to the worker’s injury.” {Grahn v. Tosco, supra, 58 Cal.App.4th at pp. 1384-1385.)
Nor does the hirer’s inability to obtain equitable indemnity from the independent contractor (Lab. Code, § 3864) create fundamental unfairness in the case of damages resulting from the hirer’s own negligence, as it would where the hirer’s liability is solely vicarious. (See Privette, supra, 5 Cal.4th at pp. 698, 701.) To the extent the fault is the hirer’s, no equitable indemnity should or would be available, whether the injury were to an employee or to a member of the public. Indeed, the workers’ compensation law provides *280 that an employer who has paid compensation for an injury may recover that compensation payment, together with certain costs, fees and special damages, from a negligent third party in a civil action. (Lab. Code, §§ 3852, 3856.) If, as the majority seems to suggest, even a negligent hirer bears no civil responsibility for injuries to a contractor’s employees, the contractor, even if faultless, will be unable to recover its costs of compensation from the negligent hirer. “The judicial abolition of all hirer liability, based on Privette , would leave the injured party’s employer, who has paid workers’ compensation benefits, without recourse against the hirer whose negligence might have caused or contributed to the worker’s injuries . . . .” (Grahn v. Tosco, supra, 58 Cal.App.4th at p. 1387.)
Finally, the hirer held liable under section 413 is not without remedy when a substantial degree of fault lies with the contractor. Like any other third party held partly at fault for an employee’s on-the-job injury, the hirer is entitled to (1) a reduction in the judgment “by an amount attributable to the employer’s [contractor’s] proportionate share of fault, up to the amount of workers’ compensation benefits paid” (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at p. 599 ), and (2) limitation of the judgment for noneconomic damages, pursuant to Civil Code section 1431.2, to the amount proportionate to the third party’s (hirer’s) own share of fault (DaFonte v. Up-Right, Inc., supra, at p. 604). Cases presumably exist in which this formula leaves the third party responsible for more than its fault-proportionate share of economic damages. Any unfairness in that result, however, is an unfairness the law imposes on all third parties who negligently contribute to on-the-job injuries, not only on hirers of independent contractors.
The holding I urge, that Privette does not bar liability on the part of a person who hires a contractor to perform inherently dangerous work, but fails to direct that precautions be taken against dangers specially known to or within the control of the hirer, would not nullify the effect of Privette or allow injured workers to routinely circumvent that decision. To be sure, some “pleading around” Privette might be expected, but the only way to prevent all such artful pleading would be to hold, as an absolute rule, that the hirer is never liable, on any theory, for injuries to the contractor’s workers, a rule even the majority does not explicitly embrace. Indeed, the majority’s concession that Privette does not bar liability for failure to disclose concealed dangers (maj. opn., ante, at p. 269, fn. 4) will itself provide ample shelter for the artful pleader. But pleading and proving are two different things. The circumstances in which I would allow liability are narrow, and, in a routine case of contractor negligence or pure accident, a cause of action against the hirer would not survive summary proceedings.
The distinction between liability imposed vicariously and that based on personal negligence, moreover, is one that can be coherently and predictably *281 applied to determine what theories of liability are and are not barred by Privette . A recent Court of Appeal decision illustrates this approach. (Grahn v. Tosco Corp., supra, 58 Cal.App.4th 1373 .) After concluding that Privette was intended to preclude worker suits only for causes of action “based on principles of vicarious liability” (id. at p. 1389), the court examined each of the liability theories submitted to the jury in that case and determined that, while Privette does not bar theories of liability for negligent hiring of a contractor (§ 411) or negligent exercise of retained control (§ 414), it does bar liability for a dangerous condition on the land (§ 343) where the dangerous condition is created by or was the subject of the contractor’s work. (Grahn v. Tosco Corp., supra, at pp. 1389-1401 .) In contrast, the majority opinion in this case leaves the bench with no meaningful guidance as to how Privette affects common theories of hirer liability other than those falling within the rubric of peculiar risk. Continued conflict at the appellate level will be the sure result, with the consequence of more uncertainty and error in the trial courts.
My criticism in this respect is not directed at the majority’s conclusion that we do not have before us the question of liability for negligent exercise of retained control (§ 414), a conclusion with which I agree, but, rather, at the majority’s failure to articulate for the present decision a coherent rationale that will guide future courts in deciding related questions as to the construction of Privette .
At places, the majority relies simply on its view (which I believe incorrect) that all “peculiar risk” liability is “derivative” or “vicarious,” perhaps suggesting Privette does not bar some other theories of hirer liability to a contractor’s workers. (E.g., maj. opn., ante, atp. 265 [alluding to “traditional theories] of direct liability,” which presumably are not barred by Privette].) At other points, however, the majority appears to rely on a broader rationale, one that logically would preclude other recognized theories of hirer liability, such as negligent exercise of retained control.
For example, the majority observes that sections 413 and 416 are both stated as exceptions to a general rule of nonliability for a contractor’s acts or omissions, embodied in section 409. (Maj. opn., ante, at p. 265.) True enough, but so, of course, is section 414, which recognizes the retained control theory of liability. Similarly, at page 266, ante, the majority relies on the argument made in a tentative draft of the Restatement (but not adopted in comments to the final version) that a hirer’s liability to “others” or “another,” as those words are used in the Restatement, should not extend to employees of the contractor, because injuries to those employees are covered by workers’ compensation, the costs of which are passed on to hirers. That *282 reasoning, of course, suggests that all theories of hirer liability to the contractor’s employees should be barred, including that embodied in section 414, which states that a hirer may be liable to “others” for negligent exercise of retained control. Yet the majority opinion (ante, p. 269, fn. 4) then disavows an interpretation of Privette as barring all hirer liability. The majority opinion, in short, adds regrettable confusion to an already muddled area of the law.
Ill
The summary judgment record reveals plaintiff Timothy Toland, an employee of the framing subcontractor CLP Construction, Inc. (CLP) was injured while attempting, with several other CLP workers, to raise a framed wall to the vertical position. At the CLP foreman’s direction, the crew tried to “walk” the wall up from underneath; after a certain point they were unable to raise it further and, for reasons not clear from the evidence, it suddenly fell, with Toland trapped beneath it. There was evidence the wall’s design and the wet winter weather made the frame relatively heavy and that the wind was gusting strongly at or around the time the crew tried to raise it. Plaintiff’s expert declared that “[ijndustry custom of good safe practice dictates that tall walls and or heavy walls (such as the wall in question) be raised or stood by mechanical means as opposed to manual (man power) methods.” On the next working day after the accident in which Toland was injured, CLP used a boom truck to raise the wall.
I would hold the record failed to present a triable issue, under the Nelson analysis, as to liability of the general contractor and developer, Sunland Housing Group, Inc. (Sunland), for injuries resulting from a peculiar risk. Nothing in this record suggests Sunland was in a better position to assess the weight of the frame, the weather conditions, or the strength and number of the workers available to raise the wall. To the contrary, CLP, knowing its own workers, having actually built the wall to be lifted, and being able to assess the weather conditions from moment to moment, was better positioned than Sunland to evaluate the danger of lifting the wall without mechanical assistance. CLP was, in addition, better positioned to train and direct its own workers in execution of the chosen method. If, as plaintiff’s expert opined, the customary and safe practice is to use a mechanical device to raise such a wall, no facts in the record suggest the general contractor would have better reason to know of such practice or be better positioned to implement it than the framing contractor. In short, in this case as in Nelson, supra, 639 F.2d at page 478 , there is no evidence “that the [hirer] was in a better position than the contractor either to anticipate dangers to workmen, to foresee and evaluate the best methods of protection, or to implement and *283 enforce compliance with appropriate on-site safety precautions.” The record, rather, supports the contrary inference, that CLP was in the best position to avoid risks arising from its own work. Sunland should therefore not be liable for injuries resulting from CLP’s negligent choice of a particular work method or its performance thereof.
For this reason, I concur in the result.
Mosk, J., concurred.
As noted in Grahn v. Tosco Corp. (1997) 58 Cal.App.4th 1373, 1379 [ 68 Cal.Rptr.2d 806 ], footnote 1, the person employing the independent contractor may be referred to as the “employer,” “principal,” “hirer” or, depending on the circumstances of the case, as the “owner," “developer” or “general contractor.” In this opinion, I adopt the Grahn court’s usage of “hirer” to designate, in general, the person hiring the contractor.
Unless otherwise noted, all further section references are to the Restatement Second of Torts.
A peculiar or special risk is one “peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done.” (§ 413, com. b, p. 385.) Section 413 does not hold the hirer liable merely for failing to prevent the contractor from doing the work negligently. (Ibid.; see Hughes v. Atlantic Pacific Construction Co. (1987) 194 Cal.App.3d 987, 1000 [ 240 Cal.Rptr. 200 ] [peculiar risk doctrine “does not apply to injuries resulting from the independent contractor’s negligence for failing to take precautions as to the work’s operative details”].) Although we did not grant review to decide whether the injury here arose from a peculiar risk or from the contractor’s collateral negligence, the facts of this case (see post, pt. Ill) suggest the injury arose from the contractor’s simple negligence in the detailed performance of the work, rather than from the hirer’s failure to protect against an inherent peculiar risk.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9579166. Public record. Not legal advice.