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McKown v. Wal-Mart, Inc.

Hirer of contractor may be held liable for providing unsafe equipment to contractor's employee.

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The full case caption appears at the end of this opinion.

This is the third in a series of recent cases in which we have been called upon to consider the reach of our decisions in Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland). In Privette and 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 of the Restatement Second of Torts (hereafter Restatement), [FOOTNOTE 1] but is restricted instead to a claim against the contractor under the workers’ compensation insurance system. The two prior cases, respectively, raise the question whether, under the rationale of Privette and Toland, an employee of an independent contractor is barred from suing the hirer of the contractor under the tort theories of (1) negligent hiring, and (2) negligent exercise of retained control. In Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 (Camargo), we held that an employee of an independent contractor is barred from suing the hirer of the contractor for the tort of negligent hiring. In Hooker v. Department of Transportation (Jan. 31, 2002, S091601) __ Cal.4th __ (Hooker), a companion to this case, we held that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer’ s exercise of retained control affirmatively contributed to the employee’ s injuries. In this case, we hold that a hirer is liable to an employee of an independent contractor insofar as the hirer’ s provision of unsafe equipment affirmatively contributes to the employee’ s injury. [FOOTNOTE 2]

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