# McKown v. Wal-Mart Stores, Inc.

> California Supreme Court · January 31, 2002 · 115 Cal. Rptr. 2d 868

URL: https://www.frixlaw.com/law-library/cases/9786784

## Case

- **Full name:** BRIAN McKOWN, Plaintiff and Respondent, v. WAL-MART STORES, INC., Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** January 31, 2002
- **Citations:** 115 Cal. Rptr. 2d 868; 27 Cal. 4th 219; 2002 Daily Journal DAR 1164; 38 P.3d 1094; 67 Cal. Comp. Cases 36; 2002 Cal. Daily Op. Serv. 947; 2002 Cal. LEXIS 465
- **Precedential status:** Published
- **Opinion:** Concurrence by Werdegar
- **Judges:** Brown, Werdegar
- **Cited by:** 59 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/9786784

## How later opinions describe it (automated extraction)

- holding that "when a hirer of an independent contractor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of an employee of the contractor, the hirer should be liable to the employee for the consequences of the hirer's own n…

## Opinion text

WERDEGAR, J.
I concur in the result. But as in the companion case, Hooker v. Department of Transportation (2002) 27 Cal.4th 198 [ 115 Cal.Rptr.2d 853 , 38 P.3d 1081 ] (Hooker), I disagree with the majority’s rule limiting a hirer’s liability for its own negligence to acts that “affirmatively contribute[]” to the injury of a contractor’s employee (maj. opn., ante, at p. 222). That limitation is an unwarranted intrusion into the jury’s role in finding facts and allocating fault.
In the present case, Wal-Mart Stores, Inc. (Wal-Mart) argues it should not be liable because the jury found it only 23 percent at fault, while finding the *227 contractor 55 percent at fault, arguably making the contractor the party “primarily” at fault. Wal-Mart’s position is in obvious conflict with the principles of comparative fault. That one party is deemed less responsible than another, or that the more responsible party is assigned more than 50 percent of the fault, does not exonerate or immunize the less responsible party, though it may reduce that party’s ultimate liability. The majority is therefore correct to reject Wal-Mart’s position, but in substituting its own “affirmatively contribute[]” test (maj. opn., ante, at pp. 225-226), the majority makes essentially the same error as Wal-Mart. As I explain in my dissent in Hooker, supra, 27 Cal.4th 198, 215 , that one party is deemed to have negligently contributed to an accident only by omission, or that another party contributed to the accident by affirmative act, does not exonerate or immunize the party contributing by omission, though it may well reduce that party’s ultimate liability.
The distinction between act and omission, or activity and passivity, is likely to be important to a jury in allocating fault, but it does not properly play a role in a court’s decision whether a hirer may be hable at all for injuries to a contractor’s employee. (See Hooker, supra, 27 Cal.4th at pp. 216-217 (dis. opn. of Werdegar, J.).) Just as the majority in this case accepts the jury’s allocation of fault even though Wal-Mart “requested,” rather than “insist[ed],” that its own forklift be used (maj. opn., ante, at p. 225), so should it accept a jury’s allocation of fault (if supported by all the evidence) without imposing a rule of complete immunity for hirers who contribute to an accident by negligent omission rather than affirmative act.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9786784. Public record. Not legal advice.