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Vol. 2009-04 April, 2009

CONSTRUCTION RISK / FAULT / IMMUNITY

Established legal principles are applied by courts to the specific facts of each case in order to determine the risk, fault, or immunity of the parties. An important California case decision illustrates precedent in construction cases in the legal process:

[52] When a property owner or general contractor who hires an independent contractor for work presenting a peculiar risk of harm to others is held liable under the doctrine of peculiar risk for injuries to an innocent bystander or an owner of neighboring land, the property owner or general contractor can, for the damages paid the injured party, obtain equitable indemnity from the independent contractor responsible for the injuries. This ensures that the ultimate responsibility for the harm caused by the peculiar risk of the work done is borne by the individual or entity at fault for the injury. But when the person injured is an employee of the independent contractor, the exclusivity provisions of the workers' compensation scheme shield the negligent contractor from an action seeking equitable indemnity.

( 3864.) Not present in such a case is a significant policy justification for imposing peculiar risk liability on a nonnegligent party: the ability of the person held liable on a peculiar risk theory to be made whole by the party responsible for the injury. As one California Court of Appeal has recognized, affixing liability without indemnification places an onerous burden on someone who is "fault-free." (Anderson v. Chancellor Western Oil Dev. Corp. (1975) 53 Cal.App.3d 235, 242- 243, fn. 2 [125 Cal.Rptr. 640].) " Privette v. Superior Court of Santa Clara County, 5 Cal.4th 689, 854 P.2d 721, 21 Cal.Rptr.2d 72 (Cal. 07/19/1993).

Another important California case decision cited Privette, providing historic background for its decision: The Privette cases address when and whether an injured employee of an independent contractor may go beyond his or her worker's compensation remedy by suing the hirer of the independent contractor. Our Supreme Court explained
in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 200-201 (Hooker):"In [Privette] and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 . . . (Toland), we held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiar risk doctrine set forth in sections 413 and 416.(fn3) 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 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. [Then], in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 . . . (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."

KHAMVAN v. WESTERN ENVIRONMENTAL CONSULTANTS, INC., 2008-CA-1210.003.

"All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."
Arthur Schopenhauer

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.

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