Hooker v. Department of Transportation

WERDEGAR, J.

I respectfully dissent. While I agree with the majority that a party hiring an independent contractor may be liable in tort to employees of the contractor for negligent exercise of control the hirer has retained over any part of the work, I disagree that such liability may exist *216 only when the hirer’s exercise of control “affirmatively contributed to the injury of the contractor’s employee” (maj. opn., ante, .at p. 210). The majority’s analysis, and the result it reaches in this case, usurp the factfinding and fault allocation functions assigned to the jury under our comparative fault system.

The evidence produced on summary judgment showed that California Department of Transportation (Caltrans) employees had permitted construction traffic on the overpass where plaintiff’s decedent was working, and had driven Caltrans’s own vehicles on the overpass. The Caltrans construction manual required the construction safety coordinator to know proper “construction zone traffic management,” implying that Caltrans bore responsibility for exercising such management. A reasonable trier of fact could infer that Caltrans retained control over construction zone traffic management and that, in exercising this retained control, Caltrans used, and permitted other vehicles to use, the overpass. The resulting traffic frequently required the decedent to retract the outriggers of his crane, a practice that led proximately to his fatal accident. Evidence showed as well that Caltrans representatives had observed the outriggers being repeatedly retracted, knew the crane was unstable in that state, and knew that if they were to “flag off’ the overpass the crane operator would not have to retract the outriggers. This complex of evidence raises at least a triable issue of fact (Code Civ. Proc., § 437c) as to whether Caltrans negligently exercised its retained control over construction zone traffic, contributing to the decedent’s death.

To be sure, the evidence suggests that Caltrans did not bear sole fault in the accident. Caltrans apparently did not order the decedent to retract the outriggers for passing traffic; nor, apparently, did Caltrans direct the decedent to attempt operating the crane before reextending the outriggers. It may be that a jury, hearing all the evidence, would find the decedent largely at fault for his own death and assign to Caltrans only a small share of the fault, based on its having permitted and contributed to the overpass traffic. In that case, Caltrans’s liability would be reduced; the comparative fault system operates to reduce the liability of a negligent hirer in the same manner it reduces the liability of other third parties for employee injuries. (See Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 280 [ 74 Cal.Rptr.2d 878 , 955 P.2d 504 ] (conc. & dis. opn. of Werdegar, J.).) No special judicial test of negligence is required in order to achieve a fair allocation of fault.

The majority’s “affirmatively contribute” test of negligence liability reflects the notion that a person who actually performs a dangerous act, or directs its performance, is likely to be more at fault for the resulting accident *217 than a person who merely fails to correct the conditions creating the danger. One might expect that generalization to be reflected, as well, in a jury verdict on liability: to the extent the hirer’s fault is seen as resting solely on inaction, the jury is likely to assign the hirer a low share of fault in comparison to those who contributed to the injury by their actual participation in the operation. But the determination of comparative fault in this manner, like any negligence determination, rests on the specific facts of the case: to whom was the danger apparent; who had the ability to alleviate the danger, and by what means and at what costs? From the distinctions between activity and passivity, act and omission, which a jury might properly use to measure and compare fault, the majority fashions a purported bright-line rule for courts to apply. 1 Its effort is both unnecessary and inimical to the jury system.

I do not suggest every retained-control claim must go to a jury. The mere fact that a contract gives the hiring party general control over the project and the authority to stop work should not create liability if, in practice, the hirer’s supervision and control did not actually extend to any part of the operation contributing to the hazard. As the Restatement Second of Torts cautions: “It is not enough that [the hirer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. . . . There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” (Rest.2d Torts, § 414, com. c, p. 388; see also Hobbs v. Mobil Oil Corporation (Alaska 1968) 445 P.2d 933, 936 [hirer not liable to a contractor’s employee if “under the contract and in actual practice” the hirer’s control does not affect the contractor’s “methods of work” or the “operative detail” of the work].)

The present case, however, is not merely one of contractual or formal control. Plaintiff has produced evidence from which one can infer that Caltrans’s actual exercise of control over traffic on the site affected the manner in which the crane operations were conducted; the contractor, consequently, was not “entirely free to do the work in his own way.” (Rest.2d Torts, § 414, com. c, p. 388.) Whether after full discovery and trial a jury *218 would agree with plaintiff that Caltrans’s management of traffic at the site was partly responsible for the crane’s unsafe operation and the resulting accident is not at issue at this point in the proceedings. To properly obtain summary judgment, defendant must show that plaintiff “has not established, and cannot reasonably expect to establish, a prima facie case” of negligent exercise of retained control. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [ 107 Cal.Rptr.2d 617 , 23 P.3d 1143 ], italics added.) Defendant has not made that showing.

I would affirm the judgment of the Court of Appeal.

Appellant’s petition for a rehearing was denied March 27, 2002. Chin, J., did not participate therein.

The line drawn is actually rather fuzzy in light of the majority’s suggestion that some “omissions” may be deemed “affirmative” contributions to an injury. (Maj. opn., ante, at p. 212, fn. 3.) The majority further fails to explain why a hirer’s “promisef]” (ibid.) to exercise control allows for possible liability while the contractual retention of control is held insufficient as a matter of law, even, as in this case, where the hirer’s retention of control could reasonably have led the contractor and its employees to expect that the hirer would in fact exercise its control when necessary.