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Owners and Contractors are Liable for Injuries Caused by their Independent Contractors under the “Peculiar Risk Doctrine”
 

by William L. Porter, Attorney at Law

Many contractors and owners believe that if they hire an independent contractor to perform work and that independent contractor causes injury to others during the performance of that work, then it is the independent contractor alone who will be liable for those injuries. In most circumstances, this is correct. The owner or the contractor will not be held liable for injuries caused by his or her independent contractor. However, this is not always the case.

Under the “Peculiar Risk Doctrine” and California cases interpreting the doctrine, a contractor or owner who hires an independent contractor to do work which is considered to be “inherently dangerous work” can be still be held directly liable for damages when that independent contractor causes injury to others by negligently performing the work.

Such liability can generally be imposed on the one hiring the independent contractor under either of two branches of the peculiar risk doctrine. First, where a person hires an independent contractor to do inherently dangerous work, but fails to provide in the contract or in some other manner that special precautions must be taken to avert the peculiar risk of injury related to that work, then the one hiring the independent contractor can be held liable for injuries to others caused by the independent contractor’s negligence. (Restatement Second of Torts Section 413). For example, in Mackey v. Campbell Construction Co. 101 Cal. App. 3d 774, 162 Cal. Rptr. 64 (1980), Western Electric Company, the owner of the project, was found liable for the personal injuries of a subcontractor’s employee because Western’s representatives were on the job at all times, had doubts about the safety of scaffolding being used on the project, yet failed to require use of precautions that could have been taken to avoid injury.

Under the second branch of the theory, even if the one hiring the independent contractor has provided for special precautions “in the contract or otherwise,” the one hiring the independent contractor can still be liable for injuries to third parties if the independent contractor, having been advised to take special precautions, nevertheless ignores the advice, and an injury that might have been avoided by following the advice occurs. (Restatement Supra, Section 416) For example, in Johnson v. Tosco Corporation 1 Cal. App. 4th 123, 1 Cal. Rptr. 2d 747 (1991), another scaffolding case, Tosco Corporation was found liable for the injuries to a subcontractor’s employee because, even though Tosco’s representatives were always on the job, and “insisted that scaffolding in the project complied entirely with safety standards,” safety standards were not ultimately followed.

The result of this doctrine is that the one hiring the independent contractor must not only provide that specific precautions be taken to avoid peculiar risk of injury, but must also act to ensure that these precautions are actually implemented by the independent contractor. This places a heavy burden on those hiring independent contractors to perform work when some portion of that work might possibly be described as “inherently dangerous.” Contractors who tend to subcontract out all their work on a project and do not exercise sufficient oversight and involvement on site during construction would do well to be aware of the Peculiar Risk Doctrine.

The “Peculiar Risk Doctrine” has been held to include the risk of being struck by an automobile while eradicating traffic lines on a busy street (Van Arsdale v. Hollinger (date) 68 Cal. 2d 245, 66 Cal. Rptr. 20, 437 P. 2d 508), the risk of being run over by dump trucks backing up during road construction work (Anderson v. L. C. Smith Construction Co. (1969) 276 Cal. App. 2d 436, 81 Cal. Rptr. 73), the risk of explosion while painting the inside of a tank with a volatile paint (Woolen v. Aerojet General Corp. (1962) 57 Cal. 2d 407, 20 Cal. Rptr. 12, 369 P. 2d 708), the risk of falling while working on a 10-foot high wall (Morehouse v. Taubman (1970) 5 Cal. App. 3d 548, 85 Cal. Rptr. 308) or on a 20-foot high bridge (Fonseca v. County of Orange (1972) 28 Cal. App. 3d 361, 104 Cal. Rptr. 566), the risk of electrocution while operating a crane near high voltage wires during bridge construction work (Walker v. Capistrano Saddle Club (1970) 12 Cal. App. 3d 894, 90 Cal. Rptr. 912), and the risk of a cave-in while working in a 14-foot deep trench (Widman v. Rossmoor Sanitation, Inc. (1971) 19 Cal. App. 3d 734, 97 Cal. Rptr. 52).

In Toland v. Sunland Housing Group, Inc. (18 Cal. 4th 253 (1998)), the California Supreme Court answered a question as to what if the injured third parties invoking the peculiar risk doctrine are the very employees of the independent contractor performing the work? If the employees of the independent contractor were able to bring a lawsuit under the peculiar risk doctrine against the one who hired the independent contractor, then we are left with the anomalous result that the person who hired the independent contractor would bear more liability for such injuries than the independent contractor and his employees who negligently performed the work and caused their own injuries in the first place! While the negligent independent contractor would be fully protected by his Workers’ Compensation coverage and thereby immune from suit by his employees, the person who hired the independent contractor would not be protected by such coverage and would bear complete financial responsibility for the injuries of the negligent independent contractor’s employees. The California Supreme Court in the Toland case answered the question in the negative and ruled that it would be unfair to extend the peculiar risk doctrine to employees of the negligent independent contractor. The Toland ruling now bars such suits under the peculiar risk doctrine by injured employees of the independent contractor against the one hiring the independent contractor.

Despite the Toland ruling, contractors and owners must remain aware that they may still be liable for injuries to other persons and property under the peculiar risk doctrine. Hiring an independent contractor will not shield contractors and owners from liability for the negligence of the independent contractor where peculiar risks of injury are involved. The Toland case only bars such claims by the employees of the negligent independent contractor against the owner or the one hiring the independent contractor. It will not bar those claims brought by other third parties who may have been injured.

William L. Porter is a principal in Porter Law Group, Inc. in Sacramento, California.
He can be reached  at (916) 381-7868.