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Broome v. Byrd11/8/1991
contemplated risks of doing the work, as distinguished from negligence which creates only the normal or contemplated risk." Comment b sets forth the scope of the employer's liability:
The employer is required to contemplate, and to be responsible for, the negligence of the contractor with respect to all risks which are inherent in the normal and usual manner of doing the work under the particular circumstances.... He is not required to contemplate or anticipate abnormal or unusual kinds of negligence on the part of the contractor, or negligence in the performance of operative details of the work which ordinarily may be expected to be carried out with proper care, unless the circumstances under which the work is done give him warning of some special reason to take precautions, or some special risk of harm to others inherent in the work.
Defendant has not cited any cases in support of his contention. The establishment of the duty noted above is within the purview of this court as a matter of law. E. g., . Whether this duty was breached, resulting in negligence, is a question of fact. See . It is generally true that an employer of an independent contractor is not liable for the collateral or casual negligence of a contractor. Aceves v. Regal Pale Brewing Co., 24 Cal. 3d 502, 595 P.2d 619, 623, 156 Cal. Rptr. 41 (1979) (en banc). The distinction between collateral negligence and that which will render the employer liable has been termed, "a shadowy one at best." Van Arsdale v. Hollinger, 68 Cal. 2d 245, 437 P.2d 508, 513, 66 Cal. Rptr. 20 (1968) (en banc). Based on this legal foundation, "this question, like the broader issue of whether there was a peculiar risk inherent in the work being performed, is a question of fact to be resolved by the trier of fact." Caudel v. East Bay Mun. Util. Dist., 165 Cal. App. 3d 1, 211 Cal. Rptr. 222, 227 (1985). Cf. (whether store proprietor was liable for plaintiff's slipping on floor that had been stripped by independent contractor the night before presented jury question).
Under the facts of this appeal, the drop cloth may have been placed negligently on the floor, thus creating a dangerous condition that prevented that portion of the building over which defendant retained control from being kept reasonably safe. Under such circumstances, defendant's failure to rectify the dangerous condition would make him liable for plaintiff's injury because the independent contractor's negligence fell within the bases for normally holding defendant liable. Whether the use and the possibly negligent placement of a drop cloth by the independent contractor was a normal risk that should have been contemplated by defendant when the work was contracted is a question of fact. See Lockowitz v. Melnyk, 1 A.D.2d 138, 148 N.Y.S.2d 232, 233 (1956) (issue of whether the danger is inherent in the independent contractor's work and should be reasonably anticipated depends on the facts of each case). We thus hold that, whether any negligence in leaving the drop cloth on the floor in such a manner as to cause injury to a plaintiff is "collateral" negligence presents a question of material fact that cannot be resolved by summary judgment.
Conclusion
Based on the record before us, we hold that defendant was not free from vicarious liability as a matter of law merely because he hired an independent contractor to paint the building that remained open and over which defendant retained ultimate control. In these circumstances, defendant may be found liable for the negligence of the independent contractor. Whether the placement of the drop cloth and warnings relating to the painting project were "peculiar"
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