Hooker v. Department of Transportation

Hooker v. Department of Transportation

Opinion

 [*200]   [**1082]   [***854]  BROWN, J. 

This is the latest in a series of cases in which we have considered whether an employee of an independent contractor may sue the hirer of the contractor under tort theories covered in chapter 15 of the Restatement Second of Torts (hereafter Restatement). ¹ In Privette v. Superior Court (1993) 5 Cal. 4th 689 [21 Cal. Rptr. 2d 72, 854 P.2d 721] (Privette)  [*201]  and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal. 4th 253 [74 Cal. Rptr. 2d 878, 955 P.2d 504] (Toland), we held that ] an employee of a contractor may not sue the hirer of the contractor [****3]  under either of the alternative versions of the peculiar risk doctrine set forth in sections 413 and 416. Under section 413, 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, can be liable if the  [***855]  contractor's negligent performance of the work causes injury to others. Under section 416, even if the hirer has provided for special precautions in the contract or otherwise, the hirer can nevertheless be liable if the contractor fails to exercise reasonable care to take such precautions and the contractor's performance of the work causes injury to others. Most recently, in Camargo v. Tjaarda Dairy (2001) 25 Cal. 4th 1235 [108 Cal. Rptr. 2d 617, 25 P.3d 1096] (Camargo), we held that an employee of a contractor may not sue the hirer of the contractor under the negligent hiring theory set forth in section 411. Under section 411, a hirer is liable for physical harm to third persons caused by the hirer's failure to exercise reasonable care to employ a competent contractor to perform work [****4]  which will involve a risk of physical harm unless it is skillfully and carefully done, or to perform any duty which the hirer owes to third persons.

The question presented in this case is whether an employee of a contractor may sue the hirer of a contractor for the tort of negligent exercise of retained control set forth in section 414. ² Section 414 provides:  [**1083]  ] "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care."

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