Supreme Court of California Justia
Citation 49 Cal. 4th 518, 232 P.3d 656, 110 Cal. Rptr. 3d 665

Tverberg v. Fillner Construction Co.


Filed 6/28/10

IN THE SUPREME COURT OF CALIFORNIA

JEFFREY TVERBERG et al.,
Plaintiffs and Appellants,
S169753
v.
Ct.App. 1/4 A120050
FILLNER CONSTRUCTION, INC.,
Solano County
Defendant and Respondent.
Super. Ct. No. FCS028210

We granted review to resolve a conflict in the Courts of Appeal regarding the
implications of our decision in Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).
That case holds that the hirer of an independent contractor is not vicariously liable to the
contractor‟s employee who sustains on-the-job injuries resulting from a special or
peculiar risk inherent in the work. Those injuries, Privette explained, are covered by
workers‟ compensation insurance, the cost of which is generally included in the contract
price for the project. (Id. at pp. 697-698.)
Here, after getting injured at a construction jobsite, an independent contractor
hired by a subcontractor sued the general contractor. The trial court granted summary
judgment for defendant general contractor. The Court of Appeal reversed. It held that
Privette, supra, 5 Cal.4th 689, precludes recovery only when jobsite injuries are subject
to mandatory coverage under California‟s workers‟ compensation system, which is not
the case when the injured person is an independent contractor. The court expressly
1



disagreed with the Court of Appeal in Michael v. Denbeste Transp., Inc. (2006) 137
Cal.App.4th 1082 (Michael), which concluded that Privette‟s holding — that the peculiar
risk doctrine does not make one who hires a contractor vicariously liable for workplace
injuries sustained by the hired contractor‟s employees — also operates to bar peculiar
risk liability for workplace injuries of an independent contractor. We agree with Michael
that the peculiar risk doctrine does not make a hiring party liable for the workplace
injuries of an independent contractor. But we do not agree with Michael that Privette‟s
holding applies directly in this situation. Nor do we agree with the Court of Appeal here
that the presence or absence of workers‟ compensation coverage is the key to resolving
this case. Rather, the reason underlying our holding is this: Unlike a mere employee, an
independent contractor, by virtue of the contract, has authority to determine the manner
in which inherently dangerous construction work is to be performed, and thus assumes
legal responsibility for carrying out the contracted work, including the taking of
workplace safety precautions. Having assumed responsibility for workplace safety, an
independent contractor may not hold a hiring party vicariously liable for injuries resulting
from the contractor‟s own failure to effectively guard against risks inherent in the
contracted work.
I
Because this case comes before us after the trial court‟s grant of summary
judgment, we apply these well-established rules: “ „ “[W]e take the facts from the record
that was before the trial court when it ruled on that motion,” ‟ ” and we “ „ “ „ “review the
trial court‟s decision de novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and sustained.” ‟ ” ‟ ”
(Hughes v. Pair (2009) 46 Cal.4th 1035, 1039, quoting Lonicki v. Sutter Health Central
(2008) 43 Cal.4th 201, 206.) We also “ „ “liberally construe the evidence in support of
the party opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.” ‟ ” (Ibid.)
2

In April and May 2006, defendant Fillner Construction Company was the general
contractor for the expansion of a commercial-fuel facility operated by Ramos Oil
Company in Dixon, Solano County, California. The project required construction of a
metal canopy over some fuel-pumping units. To do that work, Fillner hired subcontractor
Lane Supply, which delegated the work to subcontractor Perry Construction Company,
which then hired plaintiff independent contractor Jeffrey Tverberg as foreman of Perry‟s
two-man canopy-construction crew. Tverberg, who had more than 20 years‟ experience
in structural steel construction, held a state contractor‟s license under the name J.T.
Construction, a sole proprietorship consisting exclusively of Tverberg. Although
subcontractor Perry paid Tverberg on an hourly basis, it is undisputed that Tverberg was
not Perry‟s employee but an independent contractor.
As part of the entire commercial-fuel facility project, defendant general contractor
Fillner hired subcontractor Alexander Concrete Company to erect eight “bollards,”
concrete posts intended to prevent vehicles from colliding with the fuel dispensers. On
May 1, 2006, which was plaintiff Tverberg‟s first day on the job, subcontractor
Alexander had already dug eight holes for the bollard footings; each hole was four feet
wide and four feet deep. The holes, marked with stakes and safety ribbon, were next to
the area where Tverberg was to erect the metal canopy. The bollards had no connection
to the building of the metal canopy, and Tverberg had never before seen bollard holes at a
canopy installation.
Plaintiff Tverberg asked Steve Richardson, the “lead man” for defendant general
contractor Fillner, to cover the holes with large metal plates that were on the site, but
Richardson said that he did not have the necessary equipment that day. Richardson did,
however, have his crew use a tractor to flatten dirt that was piled around the holes. And
Tverberg himself removed three or four stakes that were marking the edges of some of
the bollard holes.
3

The next day, with the bollard holes still uncovered, Tverberg began working on
the canopy. He again asked Richardson to cover the holes, but Richardson did not do so.
A short while later, as Tverberg walked from his truck toward the canopy, he fell into a
bollard hole and was injured.
Tverberg then sued general contractor Fillner and subcontractor Perry, which had
hired Tverberg, seeking damages for physical and mental injuries and lost income under
theories of negligence and premises liability. It is not clear whether Tverberg‟s
complaint sought recovery under a peculiar risk theory. That theory became an issue
when defendant general contractor Fillner‟s motion for summary judgment asserted that
under this court‟s decision in Privette, supra, 5 Cal.4th 689, Fillner could not be held
vicariously liable for plaintiff‟s injuries. Fillner also asserted that it could not be held
directly liable for negligence in failing to provide a safe workplace.1 Tverberg opposed
the motion, contending only that Fillner had retained control over safety conditions at the
jobsite and thus could be held directly liable for its failure to eradicate a known danger,
namely, the open bollard holes.
The trial court entered summary judgment for defendant general contractor.
Citing the Court of Appeal‟s decision in Michael, supra, 137 Cal.App.4th 1082, the trial
court ruled that plaintiff independent contractor could not hold the general contractor
vicariously liable on a theory of peculiar risk. The court also rejected plaintiff‟s
contention that defendant general contractor could be held directly liable for failing to
cover the bollard holes, noting that plaintiff had been “aware of the danger posed by the
bollard holes” but “did not refuse to work around” them, and that defendant had never
promised to cover the holes.
On appeal, plaintiff independent contractor argued for the first time that Privette,
supra, 5 Cal.4th 689, did not bar him from holding the general contractor vicariously

1
Defendant subcontractor Perry Construction Company, which had hired plaintiff
Tverberg, did not seek summary judgment.
4



liable on a theory of peculiar risk. The Court of Appeal agreed, and it reversed the trial
court‟s summary judgment for defendant general contractor. The Court of Appeal held
that Privette‟s rule of not imposing vicarious liability against a hiring party for jobsite
injuries sustained by an employee of an independent contractor does not apply when the
person injured is the independent contractor himself, because unlike the employee, the
contractor is not subject to mandatory workers‟ compensation coverage. The court
expressly disagreed with the Court of Appeal in Michael, supra, 137 Cal.App.4th 1082,
1086, that Privette‟s “policies and rationale” would not permit an independent contractor
to hold a hiring party vicariously liable for workplace injuries.
We granted defendant general contractor‟s petition for review.
II
Informative here is the analysis in our 1993 decision in Privette, supra, 5 Cal.4th
689; we therefore discuss it in detail. After Franklin Privette had hired a roofing
contractor to install a tar and gravel roof on a duplex he owned, one of the contractor‟s
employees was, in the course of the work, severely burned by hot tar. (Id. at p. 692.)
The employee sought recovery under California‟s system of workers‟ compensation for
the workplace injury. He also sued Privette, asserting that under the doctrine of peculiar
risk the duplex owner could be held vicariously liable for the roofing contractor‟s
negligence. (Ibid.)
As we explained in Privette, supra, 5 Cal.4th at page 695, the term “peculiar risk”
derives from the Restatement Second of Torts. A peculiar risk is “neither a risk that is
abnormal to the type of work done, nor a risk that is abnormally great.” (Privette, supra,
at p. 695.) Rather, it is a special or recognizable danger inherent in the work itself, and
that arises “either from the nature or the location of the work and „ “against which a
reasonable person would recognize the necessity of taking special precautions.” ‟ ”
(Ibid.)
5

The doctrine of peculiar risk is a judicially created exception to the common law
rule that a person hiring an independent contractor to perform inherently dangerous work
is generally not liable to third parties for injuries resulting from the work. (Privette,
supra, 5 Cal.4th at p. 693.) Through this exception to the general rule of hirer
nonliability, courts sought to ensure that “a landowner who chose to undertake inherently
dangerous activity on his land should not escape liability for injuries to others simply by
hiring an independent contractor to do the work.” (Id. at p. 694.) Thus, “innocent third
parties injured by the negligence of an independent contractor hired by a landowner to do
inherently dangerous work . . . would not have to depend on the contractor‟s solvency in
order to receive compensation for the injuries.” (Ibid.)
At first, the doctrine of peculiar risk was applied to subject a landowner to liability
only to certain third parties — either bystanders or neighboring property owners — who
were injured by the work performed by the hired contractor. (Privette, supra, 5 Cal.4th at
p. 696.) But over time some courts expanded the doctrine‟s reach to include another
category of third parties — employees of an independent contractor hired by the property
owner to perform work that is inherently dangerous, thus subjecting the landowner to
vicarious liability for such employees‟ on-the-job injuries. (Ibid.)
In Privette, supra, 5 Cal.4th 689, 702, we rejected that expansion of the peculiar
risk doctrine. Our reason: Workplace injuries to an independent contractor‟s employees
are already compensable under California‟s Workers‟ Compensation Act (Lab. Code,
§§ 3600, subd. (a), 3716). (Privette, supra, at p. 697.) This no-fault-based recovery
provides “ „the exclusive remedy against an employer for injury or death of an
employee.‟ ” (Ibid.) Because workers‟ compensation is the exclusive remedy for an
employee‟s workplace injuries, thus barring recovery from the employer, so too an
independent contractor‟s employee should not be allowed to recover damages from the
contractor‟s hirer, who “is indirectly paying for the cost of [workers‟ compensation]
6

coverage, which the [hired] contractor presumably has calculated into the contract price.”
(Privette, supra, 5 Cal.4th at p. 699.)
Privette pointed out that liability imposed under the peculiar risk doctrine is
vicarious, meaning that the liability of a person hiring a contractor to perform inherently
dangerous work derives not from any negligence by the hirer but from the injury-causing
negligence of the hired contractor. (Privette, supra, 5 Cal.4th at p. 695 & fn. 2.)
Five years later in Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253
(Toland), we reiterated the vicarious nature of liability imposed under a theory of peculiar
risk. As in Privette, supra, 5 Cal.4th 689, Toland involved an independent contractor‟s
employee who was injured at the workplace. Toland declined to impose peculiar risk
liability against a general contractor for the jobsite injuries of an employee of an
independent contractor whose negligence had caused the employee‟s injuries. Peculiar
risk liability, we said, “is in essence „vicarious‟ or „derivative‟ in the sense that it derives
from the „act or omission‟ of the [independent] contractor, because it is the [independent]
contractor who has caused the injury by failing to use reasonable care in performing the
work.” (Toland, supra, at p. 265.) We further explained that general contractors, like all
others who hire independent contractors, have “the right to delegate to independent
contractors the responsibility of ensuring the safety of their own workers.” (Id. at p.
269.) Later, in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman), we again
addressed this issue of delegation.
Kinsman explained that the concept of delegation is helpful to understanding
Privette‟s rule that the hirer of an independent contractor is not vicariously liable for
workplace injury suffered by an employee of the negligent independent contractor. In the
words of Kinsman: “[A]t common law it was regarded as the norm that when a hirer
delegated a task to an independent contractor, it in effect delegated responsibility for
performing that task safely, and assignment of liability to the contractor followed that
delegation. [Citation.] For various policy reasons discussed in Privette, courts have
7

severely limited the hirer‟s ability to delegate responsibility and escape liability. . . .
[P]rincipally because of the availability of workers‟ compensation, these policy reasons
for limiting delegation do not apply to the hirer‟s ability to delegate to an independent
contractor the duty to provide the contractor‟s employees with a safe working
environment.” (Kinsman, supra, 37 Cal.4th at p. 671.)
Against this legal backdrop, we now consider the case before us.
III
As mentioned at the outset, here an independent contractor who was hired by a
subcontractor sued the general contractor seeking damages for workplace injuries. In
holding that the independent contractor could bring the lawsuit, the Court of Appeal
looked to our decision in Privette, supra, 5 Cal.4th 689. That case holds that the hirer of
an independent contractor is not vicariously liable to the contractor‟s employee who
sustains on-the-job injuries arising from a special or peculiar risk inherent in the work.
The Court of Appeal reasoned that Privette did not control because unlike the
independent contractor‟s employee injured at the jobsite, as occurred in Privette, the
injured independent contractor here was not subject to mandatory coverage for workplace
injuries under California‟s workers‟ compensation system.2
The Court of Appeal expressly disagreed with the Court of Appeal in Michael,
supra, 137 Cal.App.4th 1082, that the reasoning of Privette, supra, 5 Cal.4th 689, would
preclude an on-the-job-injured independent contractor, hired by a subcontractor, from
holding the general contractor vicariously liable under a theory of peculiar risk. Michael
described its conclusion as “consistent with common law principles and public policy”
set out by this court in Kinsman, supra, 37 Cal.4th 659, 671, which explained that
principles of delegation are helpful in understanding a hirer‟s vicarious liability.

2
Under Insurance Code section 11846, independent contractors such as plaintiff
may, but are not required to, obtain coverage for workplace injury by purchasing a
workers‟ compensation insurance policy.
8



(Michael, supra, at p. 1094 [discussing Kinsman].) Michael also said that the general
contractor had “no duty to inquire” whether the person hired by the subcontractor was the
subcontractor‟s “employee or an independent contractor” (Michael, supra, at p. 1095),
and that no policy supported imposing “ „any greater liability‟ ” on a general contractor
merely because the subcontractor hired an independent contractor to perform work it
might have assigned to its own employee (id. at pp. 1095-1096).
We agree with the Court of Appeal in Michael, supra, 137 Cal.App.4th 1082, that
an injured independent contractor hired by a subcontractor cannot hold the general
contractor vicariously liable for those jobsite injuries on a theory of peculiar risk. But our
reasoning differs, as we explain below.
As mentioned earlier, the doctrine of peculiar risk was developed by the courts as
an exception to the common law rule of hirer nonliability “to ensure that innocent third
parties injured by the negligence of an independent contractor hired by a landowner to do
inherently dangerous work . . . would not have to depend on the contractor‟s solvency in
order to receive compensation for the injuries.” (Privette, supra, 5 Cal.4th at p. 694,
italics added.) “It was believed that as between two parties innocent of any personal
wrongdoing — the person who contracted for the work and the hapless victim of the
contractor‟s negligence — the risk of loss occasioned by the contracted work was more
fairly allocated to the person for whose benefit the job was undertaken.” (Ibid.) Privette
held that an independent contractor‟s injured employee, although qualifying as a “third
party” with respect to the contract between the hirer and the independent contractor,
cannot use the doctrine of peculiar risk to recover damages from the hirer of the
independent contractor for injuries compensable under workers‟ compensation insurance,
the cost of which is generally included in the contract price for the hired work. In
Privette, in which the injured plaintiff had not been delegated authority under the hiring
contract, the availability of workers‟ compensation insurance to compensate for the injury
was central to our holding that the hirer should not incur peculiar risk liability for on-the-
9

job injury to an independent contractor‟s employee. But the existence of workers‟
compensation coverage is not relevant to deciding whether a hirer should incur vicarious
liability for workplace injury to an independent contractor who was hired by a
subcontractor to do inherently dangerous work.
When an independent contractor is hired to perform inherently dangerous
construction work, that contractor, unlike a mere employee, receives authority to
determine how the work is to be performed and assumes a corresponding responsibility to
see that the work is performed safely. The independent contractor receives this authority
over the manner in which the work is to be performed from the hirer by a process of
delegation. This delegation may be direct, when the hirer has contracted with the
independent contractor, or indirect, when the hirer contracts with another contractor who
then subcontracts the work to the independent contractor. (See generally Civ. Code,
§ 2349 [allowing for such delegation of authority]; Rest.3d, Agency, § 3.15; and see
Michael, supra, 137 Cal.App.4th at pp. 1087, 1093-1094 [general contractor delegated
authority to subcontractor, who hired independent contractor Denbeste, who, in turn,
delegated work to the plaintiff].) Whether direct or indirect, this delegated control over
the performance of the work removes the independent contractor from the category of
“innocent third parties” deserving of financial protection under the doctrine of peculiar
risk. As this court stressed in Kinsman, supra, 37 Cal.4th 659, when the hirer of an
independent contractor delegates control over the work to the contractor, the hirer also
delegates “responsibility for performing [the] task safely.” (Id. at p. 671; see also
Privette, supra, 5 Cal.4th at p. 693.) Therefore, a hired independent contractor who
suffers injury resulting from risks inherent in the hired work, after having assumed
responsibility for all safety precautions reasonably necessary to prevent precisely those
sorts of injuries, is not, in the words of Privette, supra, at page 694, a “hapless victim” of
someone else‟s misconduct. In that situation, the reason for imposing vicarious liability
10

on a hirer — compensating an innocent third party for injury caused by the risks inherent
in the hired work — is missing.
As noted earlier, a hirer‟s liability under the doctrine of peculiar risk is vicarious.
(Privette, supra, 5 Cal.4th at p. 695 & fn. 2.) This means that, irrespective of the hirer‟s
lack of negligence, the hirer incurs liability for the hired contractor‟s act or omission in
failing to use reasonable care in performing the hired work. (Toland, supra, 18 Cal.4th at
p. 265.) And in hiring an independent contractor to perform work that presents some
inherent risk of injury to others, the hirer delegates responsibility over the work to the
contractor. (See Kinsman, supra, 37 Cal.4th at p. 671.) It would be anomalous to allow
an independent contractor to whom responsibility over the hired work has been delegated
to recover against the hirer on a peculiar risk theory while denying such recovery to an
independent contractor‟s employee, a person who lacks any authority over the hired work.
For these reasons, we conclude that the doctrine of peculiar risk does not apply
when, as here, an on-the-job-injured independent contractor hired by a subcontractor
seeks to hold the general contractor vicariously liable for injuries arising from risks
inherent in the nature or the location of the hired work over which the independent
contractor has, through the chain of delegation, been granted control. Because the bollard
holes were located next to the area where Tverberg was to erect the metal canopy, the
possibility of falling into one of those holes constituted an inherent risk of the canopy
work.
The Court of Appeal in this case reached a contrary conclusion, reasoning that
because plaintiff independent contractor was not subject to mandatory workers‟
compensation coverage, defendant general contractor could be held vicariously liable on
a theory of peculiar risk, and on that basis the Court of Appeal reversed the trial court‟s
grant of summary judgment for defendant general contractor. Consequently, the Court of
Appeal did not address other issues raised on plaintiff‟s appeal from the trial court‟s grant
of summary judgment for defendant general contractor, notably whether defendant could
11

be held directly liable on a theory that it retained control over safety conditions at the
jobsite. We therefore remand this matter to the Court of Appeal for consideration of
those remaining issues.
DISPOSITION
The judgment of the Court of Appeal is reversed, and the case is remanded to that
court for proceedings consistent with this opinion.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

12



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Tverberg v. Fillner Construction, Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 168 Cal.App.4th 1278
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S169753
Date Filed: June 28, 2010
__________________________________________________________________________________

Court:

Superior
County: Solano
Judge: Paul Lloyd Beeman

__________________________________________________________________________________

Attorneys for Appellant:

Kirk J. Wolden, Clayeo C. Arnold; and Leslie M. Mitchell for Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Horvitz & Levy, David M. Axelrad, Stephen E. Norris; Vitale & Lowe, Johanna M. Berta and Robert Lawrence
Bragg for Defendant and Respondent.

Ulich & Terry and Andrew K. Ulich as Amici Curiae on behalf of Defendant and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Leslie M. Mitchell
1117 Vallejo Way
Sacramento, CA 95818
(916) 447-3426

Stephen E. Norris
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436-3000
(818) 995-0800


Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: Do the limitations on a hirer's liability for injuries to employees of subcontractors that were established in Privette v. Superior Court (1993) 5 Cal.4th 689 and subsequent cases extend to claims brought by a self-employed independent contractor against a hirer for injuries sustained while doing contract work for a subcontractor?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 06/28/201049 Cal. 4th 518, 232 P.3d 656, 110 Cal. Rptr. 3d 665S169753Review - Civil Appealsubmitted/opinion due

Parties
1Tverberg, Jeffrey (Plaintiff and Appellant)
Represented by Leslie M. Mitchell
Attorney at Law
1117 Vallejo Way
Sacramento, CA

2Tverberg, Jeffrey (Plaintiff and Appellant)
Represented by Kirk Jerome Wolden
Arnold Law Firm
608 University Avenue
Sacramento, CA

3Tverberg, Catherine (Plaintiff and Appellant)
Represented by Kirk Jerome Wolden
Arnold Law Firm
608 University Avenue
Sacramento, CA

4Fillner Construction, Inc. (Defendant and Respondent)
Represented by David M. Axelrad
Horvitz & Levy, LLP
15760 Ventura Boulevard, 18th Floor
Encino, CA

5Fillner Construction, Inc. (Defendant and Respondent)
Represented by Johanna Marie Berta
Vitale & Lowe
3249 Quality Drive, Suite 200
Rancho Cordova, CA

6Fillner Construction, Inc. (Defendant and Respondent)
Represented by R. Lawrence Bragg
Vitale & Lowe
3249 Quality Drive, Suite 200
Rancho Cordova, CA

7Fillner Construction, Inc. (Defendant and Respondent)
Represented by Stephen E. Norris
Horvitz & Levy, LLP
15760 Ventura Boulevard, 18th Floor
Encino, CA

8American Insurance Association (Amicus curiae)
Represented by Priscilla F. Slocum
Law Office of Priscilla Slocum
1800 Century Park East, Suite 600
Los Angeles, CA

9Association of California Insurance Companies (Amicus curiae)
Represented by Priscilla F. Slocum
Law Office of Priscilla Slocum
1800 Century Park East, Suite 600
Los Angeles, CA

10Farmers Insurance Exchange (Amicus curiae)
Represented by Priscilla F. Slocum
Law Office of Priscilla Slocum
1800 Century Park East, Suite 600
Los Angeles, CA

11Truck Insurance Exchange (Amicus curiae)
Represented by Priscilla F. Slocum
Law Office of Priscilla Slocum
1800 Century Park East, Suite 600
Los Angeles, CA

12Ulich & Terry, LLP (Amicus curiae)
Represented by Andrew K. Ulich
Ulich & Terry, LLP
4041 MacArthur Boulevard, Suite 500
Newport Beach, CA


Opinion Authors
OpinionJustice Joyce L. Kennard

Dockets
Jan 15 2009Record requested
 
Jan 15 2009Petition for review filed
  Fillner Constr., Inc., resp. Stephen E. Norris, counsel (8.25(b))
Jan 20 2009Request for depublication (petition for review pending)
  Andrew K. Ulich, non-party in pro per
Jan 20 2009Received Court of Appeal record
  file jacket/briefs/appendix/accordian file
Jan 23 2009Received:
  amended proof of service from Andrew K. Ulich.
Feb 3 2009Request for depublication (petition for review pending)
  Fillner Constr., Inc., resp. Stephen E. Norris, Counsel
Feb 25 2009Letter sent to:
  All counsel enclosing a copy of the grant order and the form for certification of interested entities and persons.
Feb 25 2009Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Feb 26 2009Letter sent to:
  Counsel enclosing a copy of the order and the form for certification of interested entities or persons due within 15 days.
Mar 4 2009Order filed
  The order filed on February 25, 2009, granting the petition for review is amended to reflect the title above.
Mar 4 2009Certification of interested entities or persons filed
  by Kirk J. Wolden, Arnold Law Firm, counsel for plaintiffs and appellants (Tverberg et al.)
Mar 11 2009Certification of interested entities or persons filed
  by counsel for respondent. Stephen E. Norris, counsel
Mar 24 2009Request for extension of time filed
  to and including April 24, 2009, to file Respondent's Opening Brief on the Merits by Stephen E. Norris, Horvitz & Levy LLP, counsel
Mar 26 2009Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Opening Brief on the Merits is extended to and including April 24, 2009.
Apr 21 2009Request for extension of time filed
  to file Respondent's Opening Brief on the Merits to and including May 8, 2009. Stephen E. Norris, Horvitz & Levy LLP, counsel.
Apr 24 2009Extension of time granted
  On application of Respondent and good cause appearing, it is ordered that the time to serve and file the Respondent's Opening Brief on the Merits is extended to and including May 8, 2009.
May 8 2009Opening brief on the merits filed
Defendant and Respondent: Fillner Construction, Inc.Attorney: David M. Axelrad Attorney: R. Lawrence Bragg Attorney: Stephen E. Norris  
May 29 2009Request for extension of time filed
  to and including July 8, 2009, to file Appellants Answer Brief on the Merits Leslie M.Mitchell, counsel
Jun 1 2009Extension of time granted
  On application of Appellants Jeffrey and Catherine Tverberg and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including July 8, 2009.
Jul 6 2009Answer brief on the merits filed
Plaintiff and Appellant: Tverberg, JeffreyAttorney: Leslie M. Mitchell   By Jeffery Tverberg and Catherine Tverberg, Plaintiffs and Appellants Leslie M. Mitchell, Attorney
Jul 22 2009Request for extension of time filed
  to and including August 26, 2009, to file respondent's reply brief on the merits.
Jul 23 2009Extension of time granted
  On application of Respondent and good cause appearing, it is ordered that the time to serve and file the Reply Brief on the Merits is extended to and including August 26, 2009.
Aug 19 2009Request for extension of time filed
  to and including September 10, 2009 to file Respondent Fillner Construction's Reply Brief on the Merits Stephen E. Norris, counsel.
Aug 26 2009Extension of time granted
  On application of Respondent Fillner Construction, Inc. and good cause appearing, it is ordered that the time to serve and file the Reply Brief on the Merits is extended to and including September 10, 2009.
Sep 11 2009Reply brief filed (case fully briefed)
Defendant and Respondent: Fillner Construction, Inc.Attorney: Stephen E. Norris   Respondent Fillner Construction, Inc. Steven E. Norris, Horvitz & Levy CRC 8.25(b)
Sep 25 2009Request for extension of time to file amicus curiae brief
  Farmers Insurance Exchange and Truck Insurance Exchange requests a 30-day e.o.t. to and including 11-12-2009.
Sep 28 2009Extension of time granted
  On application of Amicus Curiae Farmers Insurance Exchange and Truck Insurance Exchange and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of respondent is hereby extended to and including November 12, 2009. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Oct 6 2009Application to file amicus curiae brief filed
  Ulich & Terry LLP in support of respondent Andrew K. Ulich, counsel
Oct 9 2009Request for extension of time to file amicus curiae brief
  American Insurance Association and The Association of California Insurance Company, request a 30-day extension to and including November 12, 2009, to join the amicus brief to be filed by Farmers Insurance Exchange and Truck Insurance Exchange.
Oct 14 2009Extension of time granted
  On application of amicus curiae American Insurance Association and the Association of California Insurance Company and good cause appearing, it is ordered that the time to serve and file its application for permission to file amicus curiae brief and amicus curiae brief in support of respondent is hereby extended to and including November 12, 2009.
Oct 14 2009Permission to file amicus curiae brief granted
  The application of Ulich & Terry LLP for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Oct 14 2009Amicus curiae brief filed
Amicus curiae: Ulich & Terry, LLPAttorney: Andrew K. Ulich  
Oct 30 2009Request for extension of time filed
  to and including 12-2-2009 to file Amicus Curiae Brief of Farmers Insurance Exchange, Truck Insurance Exchange, American Insurance Association and the Association of California Insurance Company in support of respondent. Priscilla F. Slocum, counsel
Nov 4 2009Change of contact information filed for:
  Leslie M. Mitchell, Attorney at Law, 1117 Vallejo Way, Sacramento, CA 95818, effective 10-30-2009
Nov 5 2009Extension of time denied
  The application of Amici Curiae Farmers Insurance Exchange, Truck Insurance Exchange, American Insurance Association, and Association of California Insurance Companies for a 20-day extension of time to file the amici curiae brief is hereby denied.
Nov 9 2009Application to file amicus curiae brief filed
  Farmers Insurance Exchange and Truck Insuarnce Exchange, American Insurance Association (AIA), and the Association of California Insurance Companies (ACIC) in support of respondent
Nov 10 2009Permission to file amicus curiae brief granted
  The application of Farmers Insurance Exchange, Truck Insurance Exchange, American Insurance Association (AIA), and the Association of California Insurance Companies (ACIC) for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Nov 10 2009Amicus curiae brief filed
Amicus curiae: Farmers Insurance ExchangeAttorney: Priscilla F. Slocum Amicus curiae: Truck Insurance ExchangeAttorney: Priscilla F. Slocum Amicus curiae: American Insurance AssociationAttorney: Priscilla F. Slocum Amicus curiae: Association of California Insurance CompaniesAttorney: Priscilla F. Slocum  
Nov 30 2009Response to amicus curiae brief filed
Plaintiff and Appellant: Tverberg, JeffreyAttorney: Kirk Jerome Wolden Plaintiff and Appellant: Tverberg, CatherineAttorney: Kirk Jerome Wolden   by appellants in response to the amicus curiae brief filed by the Farmers Insurance Exchange, et al., by Kirk Wolden, Counsel.
Dec 8 2009Filed:
  respondent's letter in response to plaintiff's answer to amicus curiae brief, by Stephen E. Norris, counsel.
Dec 10 2009Filed:
  Appellant's letter dated 12/9/2009 in response to a letter dated 12/4/2009, by counsel for Respondent Fillner Construction, Inc. Kirk J. Wolden, Arnold Law Firm, counsel. (Received in Sacramento)
Mar 3 2010Case ordered on calendar
  to be argued Wednesday, April 7, 2010, at 9:00 a.m., in Los Angeles
Apr 7 2010Cause argued and submitted
 
Jun 23 2010Filed:
  Notice of pendency of related issue and suggestion to consider vacating submission to permit supplemental briefing on non-delegable duty issue. Respondent, Fillner construcition, Inc. by counsel, Stephen E. Norris of Horvitz & Levy.
Jun 24 2010Order filed
  Defendant Fillner Construction's Motion to Vacate Submission, filed on June 23, 2010, is denied.
Jun 25 2010Notice of forthcoming opinion posted
  To be filed on Monday, June 28, 2010 at 10 a.m.

Briefs
May 8 2009Opening brief on the merits filed
Defendant and Respondent: Fillner Construction, Inc.Attorney: David M. Axelrad Attorney: R. Lawrence Bragg Attorney: Stephen E. Norris  
Jul 6 2009Answer brief on the merits filed
Plaintiff and Appellant: Tverberg, JeffreyAttorney: Leslie M. Mitchell  
Sep 11 2009Reply brief filed (case fully briefed)
Defendant and Respondent: Fillner Construction, Inc.Attorney: Stephen E. Norris  
Oct 14 2009Amicus curiae brief filed
Amicus curiae: Ulich & Terry, LLPAttorney: Andrew K. Ulich  
Nov 10 2009Amicus curiae brief filed
Amicus curiae: Farmers Insurance ExchangeAttorney: Priscilla F. Slocum Amicus curiae: Truck Insurance ExchangeAttorney: Priscilla F. Slocum Amicus curiae: American Insurance AssociationAttorney: Priscilla F. Slocum Amicus curiae: Association of California Insurance CompaniesAttorney: Priscilla F. Slocum  
Nov 30 2009Response to amicus curiae brief filed
Plaintiff and Appellant: Tverberg, JeffreyAttorney: Kirk Jerome Wolden Plaintiff and Appellant: Tverberg, CatherineAttorney: Kirk Jerome Wolden  
Brief Downloads
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respondents_petition_for_review.pdf (1822006 bytes) - Respondent's Petition for Review
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respondents_opening_brief_on_the_merits.pdf (2021100 bytes) - Respondent's Opening Brief on the Merits
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appellants_answer_brief_on_the_merits.pdf (2558293 bytes) - Appellants' Answer Brief on the Merits
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respondents_reply_brief_on_the_merits.pdf (2734643 bytes) - Respondent's Reply Brief on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 30, 2010
Annotated by hberezin

Facts
Defendant Fillner Construction Company was the general contractor for the expansion of a commercial fuel facility in Dixon, California. The project required the construction of a metal canopy over certain fuel dispensers to be installed at the site. Fillner hired subcontractor Lane Supply, which hired subcontractor Perry Construction Company, which delegated the work of building the canopy to independent contractor Jeffrey Tverberg. Tverberg had more than 20 years experience in structural steel construction.

As part of the wider construction project, Fillner had hired a different subcontractor to erect eight “bollards,” concrete posts designed to prevent vehicles from colliding with the fuel dispensers. On May 1, 2006, Tverberg’s first day on the job, the subcontractor had already dug eight holes for the bollard footings, with each hole being four feet deep and four feet wide. The holes were marked with stakes and were situated next to the area where Tverberg was to erect the metal canopy.

Tverberg had never before seen bollard holes at a canopy installation. He requested that the “lead man” for the general contractor cover the holes with large metal plates already present on the site. The general contractor replied that he did not have the equipment on site to do it on that day. The next day, with the holes still uncovered, Tverberg began working on the canopy. He again asked for the holes to be covered, but they were not. A short while later, while walking from his truck to the construction site, Tverberg fell into one of the bollard holes and was injured.

Tverberg then sued both the general contractor, Fillner, as well as the subcontractor, Perry, seeking damages for physical and mental injuries and lost income under theories of negligence and premises liability. Tverberg’s claim against the general contractor Fillner was the subject of this appeal in front of the California Supreme Court.

Procedural History
The Superior Court granted summary judgment to the defendant general contractor on the grounds that the general contractor could not be held liable on the theory of peculiar risk, citing Michael v. Denbeste Transp., Inc., 137 Cal.App 4th 1082 (2006), which held that the California Supreme Court’s decision in Privette v. Superior Court, 5 Cal.4th 689 (1993) could not lead to a showing of vicarious liability in the case of an independent contractor hired by a general contractor. In Privette, the Court had held that a party could be held vicariously liable for injuries sustained to an innocent third party. Privette also held, however, that an employee of an independent contractor could not recover on a theory of vicarious liability under equitable and common law principles, because such an employee was covered by mandatory workers’ compensation insurance. Michael held that this same rationale applied to injuries sustained by an independent contractor himself, and not simply to the employee of an independent contractor. The Superior Court also found that Fillner could not be held directly liable for Tverberg’s injuries.

The Court of Appeals reversed, holding that Michael had erroneously applied the decision in Privette to an independent contractor. The Court of Appeals reasoned that unlike the employee of an independent contractor, who was required under state law to be covered by workers’ compensation insurance, Calif. Labor Code §§3600, subd. (a)(3716), independent contractors may, but are not required to, purchase workers’ compensation insurance for workplace injury. Calif. Insurance Code 11846. Because of this distinction, the rationale in Privette that vicarious liability not be sustained against a general contractor, was not applicable. The California Supreme Court granted review to resolve the dispute between the Courts of Appeal.

Issue
May an independent contractor hold a general contractor vicariously liable under the doctrine of peculiar risk when the independent contractor is not required under state law to hold workers’ compensation insurance and when the injury arose from the inherent risk of work over which the independent contractor had been granted control by a delegation from the general contractor through a subcontractor?

Holding
An independent contractor cannot hold a general contractor vicariously liable under the doctrine of peculiar risk. While the Court disagreed with Michael and the Superior Court that the rule in Privette applied to this case because of the possibility that an independent contractor held workers’ compensation insurance, it also disagreed with the Court of Appeals that the lack of mandatory workers’ compensation insurance for independent contractors dictate that independent contractors fall into the class of persons who can recover against a general contractor under a theory of vicarious liability. Independent contractors are delegated authority by the general contractor to determine how to perform inherently dangerous work and assume a corresponding responsibility to see that the work is performed safely. Therefore, the traditional justification for vicarious liability, that the injured party was an “innocent third party,” is not present and no other justification exists for imposing such liability.

Analysis (J. Kennard)
In this case, an independent contractor was injured while performing inherently dangerous work over which he had been delegated control by a general contractor through a subcontractor. The outcome of this case depended on the application of a previous California Supreme Court case, Privette v. Superior Court, 5 Cal.4th 689 (1993). In that case, the Court held that the doctrine of peculiar risk could not be applied to create vicarious liability to a general contractor for the injuries of the employee of an independent contractor during the course of inherently dangerous work because the employee’s injuries are covered by workers’ compensation insurance, which are generally included in the contract price for the work.

The peculiar risk doctrine was created as an exception to the general rule that the hirer of an independent contractor could not be subject to liability for injuries suffered by third persons as a result of the work. Through this rule, courts sought to hold landowners liable for injuries suffered by “innocent third persons” as a result of inherently dangerous work. The rationale was that landowners, or general contractors who hire subcontractors or independent contractors, should not be able to shield themselves from liability for dangerous work simply by delegating the work to another contractor. Thus, the injured parties would not have to rely on the solvency of the independent contractor in order to receive compensation for their injuries.

Over time, some courts had expanded the reach of the peculiar risk doctrine to cover not only innocent third parties, but also employees of independent contractor who were injured during the course of inherently dangerous work. In Privette, the California Supreme Court rejected this expansion of the doctrine. Its reasoning was that employees of independent contractors are already covered by mandatory workers’ compensation insurance under Calif. Labor Code §§3600, subd. (a)(3716). Because this no-fault system was designed as the exclusive remedy by which employees could recover from their employer, so too, the court reasoned, should the employee be prevented from recovering from the employee’s hirer. See Privette, 5 Cal.4th at 699.

Subsequently, the Court reiterated the vicarious nature of liability under the peculiar risk doctrine in Toland v. Sunland Housing Group, Inc., 18 Cal.4th 253 (1998). Because a general contractor can delegate to independent contractors the responsibility of insuring the safety of their employees, there can be no vicarious liability against the general contractor, because it is the independent contractor who failed to exercise due care in protecting his employees. Id. at 269.

After Toland, the Court in Kinsman v. Unocal Corp., 37 Cal.4th 659 (2005) clarified that the traditional rule limiting the ability of general contractors to shield themselves from vicarious liability did not apply to injuries suffered by the employee of an independent contractor because the mandate of workers’ compensation insurance negated the policy reasons for limiting the ability to delegate. Id. at 671.

While the Superior Court held that Privette barred the independent contractor from recovery under the peculiar risk doctrine, the Court of Appeals held that Privette did not control because, unlike the injured employee in Privette, the independent contractor was not subject to mandatory workers’ compensation insurance. In doing so, the Court of Appeals expressly disagreed with Michael v. Denbeste Transp., Inc., 137 Cal.App.4th 1082 (2006), which held that no policy supported imposing greater liability on a general contractor merely because the general contractor hired an independent contractor to do work that the subcontractor could have assigned to his own employee. Id. at 1095-1096.

The Supreme Court agreed with Michael that a general contractor could not be held liable for injuries suffered by an independent contractor during the course of inherently dangerous work. But it did so on different grounds than did the Court of Appeals in Michael. The Court reasoned that the doctrine of peculiar risk was developed to protect innocent third parties from injuries suffered as a result of inherently dangerous work performed by a landowner or general contractor. In Privette, the availability of workers’ compensation insurance for the injured employee of the independent contractor was central to the Supreme Court’s holding that the hirer should not incur liability under the doctrine of peculiar risk.

But, as the Supreme Court notes, the availability of workers’ compensation insurance is not dispositive on the issue of whether recovery under the doctrine of peculiar risk should be available to an independent contractor who had been hired by a subcontractor to perform inherently dangerous work. An independent contractor, unlike a mere employee receives delegated authority to determine how the inherently dangerous work is to be performed and receives a corresponding responsibility to perform the work safely. This fact of delegated control removes the independent contractor from the class of innocent third parties for which the doctrine of peculiar risk was created. The Supreme Court goes on to say that it would be anomalous to deny recovery to the employee of an independent contractor, a person who lacks delegated authority, who suffered injuries in the course of performing inherently dangerous work, but allow recovery to the independent contractor himself, who had delegated authority.

Because the Court of Appeals held that the general contractor could held vicariously liable in this case, it did not address whether the contractor could be held directly liable. Therefore, the Supreme Court remanded the case to the Court of Appeals for consideration of this issue.

Tags: contractor, general contractor, subcontractor, independent contractor, vicarious liability, direct liability, workers’ compensation, mandatory workers’ compensation, peculiar risk, inherently dangerous, negligence, premises liability, delegation of authority, direct delegation of authority, indirect delegation of authority, innocent third parties

Related/Cited Cases
Privette v. Superior Court, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (1993)
Michael v. Denbeste Transp., Inc., 137 Cal.App 4th 1082, 40 Cal.Rptr.3d 777 (2006)
Toland v. Sunland Housing Group, Inc., 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504 (1998)
Kinsman v. Unocal Corp., 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931 (2005)

Annotation by Harry Berezin