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Kinsman v. Unocal Corp.,36 Cal.Rptr.3d 495
The California Supreme Court held on December 19, 2005, that a landowner may be held liable to an independent contractor's employee for concealed hazardous conditions on the property.
In a series of decisions over the last several years, the California Supreme Court has delineated the circumstances under which the employee of an independent contractor who is injured on the job may sue the hirer of that contractor. (Privette v. Superior Court (1993) 5 Cal.4th 689; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253; Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235; Hooker v. Dept' of Transportation (2002) 27 Cal.4th 198; McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal. 4th 219.
In this case, the Supreme Court considered an issue not addressed by the previous cases: when, if ever, is a landowner that hires an independent contractor liable to an employee of that contractor who is injured as the result of hazardous conditions on the landowner's premises.
Specifically, this case required the Court to determine whether a carpenter employed by an independent contractor that installed scaffolding for workers who replaced asbestos insulation in an oil refinery facility may sue the refinery owners for injuries caused by exposure to asbestos, when it is claimed that only the refinery owner knew the carpenter was being exposed to a hazardous substance.
Overturning a state appellate decision, the California Supreme Court held that while generally a landowner has no duty to independent contractors' employees regarding a property's safety, in the limited circumstance of a hidden hazardous condition known to the landowner but unknown to the contractor, the landowner may be liable for resulting injuries. The Court said when a hidden, latent hazard exists, such as an environmental hazard like asbestos exposure, a landowner's delegation of its duty of safety is invalid unless the landowner warned the contractor about the hazard.
Establishing a new rule, the Court held, "The hirer as landowner may be independently liable to the contractor's employee, even if it does not retain control over the work [that the contractor was hired to do], if (1) it knows or reasonably should know of a concealed, pre-existing hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor."
While the Court overturned the Appeals Court, it did not reinstate the jury's $3 million verdict, ordering a new trial in the case because the trial court's instructions to the jury were prejudicially erroneous. The critical issue that the jury was improperly instructed about was whether Kinsman's employer knew that the dust Kinsman worked around was asbestos and was hazardous. If the independent contractor has such knowledge, the court said, then Unocal would be relieved of any liability to Kinsman under the new rule.
To obtain additional copies of these materials, to enroll others or to recommend colleagues as subscribers to future issues of the Environmental and Toxic Tort Practice Group's Case Alert, please e-mail Jason Meyer at jmeyer@gordonrees.com.
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