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Row v. D.P.R. Construction10/30/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Michael Row sued defendant D.P.R. Construction, Inc. for injuries suffered while he worked for defendant's subcontractor on a construction site. The trial court granted defendant's motion for summary judgment on the basis of (1) Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny (limiting a hirer's peculiar-risk liability concerning employees of its independent contractors) and (2) a failure to raise a triable issue of fact as to negligent-exercise-of-retained-control liability. On appeal, plaintiff contends that (1) Privette does not bar his action because neighboring contractors, rather than his employer, caused his injury, and (2) he raised a triable issue of fact as to the retained-control theory. We disagree with plaintiff as to his first contention but agree with him as to his second contention. We therefore reverse the judgment and direct the trial court to enter an order granting defendant's motion as to the peculiar-risk theory but denying the motion as to the retained-control theory.
legal background
"The general rule at common law is that the hirer of an independent contractor is not liable to third parties for physical injuries caused by the contractor's negligence in performing the work. [Citations.] However, ` ver time, the courts have, for policy reasons, created so many exceptions to this general rule of non-liability that " ` "the rule is now primarily important as a preamble to the catalog of its exceptions." ' " [Citations.]' [Citation.]
"In Privette, the Supreme Court addressed the exception that allows liability to be extended to a hirer when the contracted work poses a `peculiar risk' of injury to others. The peculiar risk exception evolved as a way `to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work on the land would not have to depend on the contractor's solvency in order to receive compensation for the injuries. [Citations.]' [Citation.] California was one of the minority of jurisdictions that expanded this doctrine beyond third parties and allowed the contractor's employees to seek recovery from the hirer for injuries caused by the contractor's negligence. [Citations.] However, the Privette court determined this extension of peculiar risk liability to hirers did not `withstand scrutiny' when considered in light of the workers' compensation scheme. [Citation.] Whereas an innocent bystander might have no other source of compensation for injuries resulting from a contractor's negligence, the workers' compensation system guarantees the contractor's employee a recovery for workplace injuries, regardless of the solvency of the contractor. [Citations.] And, while extension of liability to the hirer is generally justified by the hirer's right to equitable indemnity from the contractor, such indemnity is not available for compensation paid to a contractor's employees. ` he exclusivity provisions of the workers' compensation scheme shield the negligent contractor from an action seeking equitable indemnity. ([Lab. Code,] ยง 3864.)' [Citation.] Privette concluded: `When, as here, the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers' compensation coverage, the doctrine of peculiar r
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