Stanford Law School - Robert Crown Law Library

Filed 12/19/05

IN THE SUPREME COURT OF CALIFORNIA

RAY KINSMAN et al.,
Plaintiffs
and
Respondents,
S118561
v.
Ct.App. 1/3 A093424/A093649
UNOCAL CORPORATION,
Super. Ct. of City and County of
Defendant and Appellant.
San Francisco No. 308646

In a series of decisions over the last dozen or so years, this court has
delineated the circumstances under which the employee of an independent
contractor who is injured on the job may sue the hirer of that contractor. (Privette
v. Superior Court (1993) 5 Cal.4th 689 (Privette); Toland v. Sunland Housing
Group, Inc. (1998) 18 Cal.4th 253 (Toland); Camargo v. Tjaarda Dairy (2001) 25
Cal.4th 1235 (Camargo); Hooker v. Department of Transportation (2002) 27
Cal.4th 198 (Hooker); McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219
(McKown).) This case requires us to consider an issue not addressed by the
previous cases: when, if ever, is a landowner that hires an independent contractor
liable to an employee of that contractor who is injured as the result of hazardous
conditions on the landowner’s premises? Specifically, in this case we must decide
whether a carpenter employed by an independent contractor that installed
scaffolding for workers who replaced asbestos insulation in an oil refinery facility
may sue the refinery owners for injuries caused by exposure to asbestos, when it is
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claimed that only the refinery owner knew the carpenter was being exposed to a
hazardous substance.
We conclude that a landowner that hires an independent contractor may be
liable to the contractor’s employee if the following conditions are present: the
landowner1 knew, or should have known, of a latent or concealed preexisting
hazardous condition on its property, the contractor did not know and could not
have reasonably discovered this hazardous condition, and the landowner failed to
warn the contractor about this condition. We further conclude that under the
circumstances of the present case, the jury was not sufficiently instructed that the
landowner was liable in this case only for failing to warn about a hidden hazardous
condition, and that the lack of sufficient instruction was prejudicial to defendant.
We therefore reverse the jury verdict in plaintiffs’ favor and remand for a new
trial.
I. STATEMENT OF FACTS
The following facts, as stated by the Court of Appeal below, are not in
dispute: “During the 1950’s, plaintiff Ray Kinsman worked on many occasions as
a carpenter at defendant Unocal’s refinery in Wilmington, California. Kinsman
was employed by Burke & Reynolds, an independent contractor Unocal hired to
perform scaffolding work during periods of ‘shutdown’ and repair at the refinery.
Kinsman built and dismantled scaffolding used by other trades, including
pipefitters and insulators. This work exposed him to airborne asbestos, which was

1
Although the term “landowner” is used throughout this opinion, and the
land in question was owned by defendant Unocal Corporation, that term is used to
refer to either an owner or a possessor of land that owes some kind of duty of care
to keep the premises safe. (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1155-
1156.)
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produced by other trades ⎯ particularly insulators ⎯ during their application and
removal of asbestos-containing insulation from pipes and machinery. Though
Kinsman did not work directly with such insulation, the evidence showed he was
exposed to asbestos dust in three ways: (1) When insulators worked on
scaffolding, asbestos-containing debris accumulated on the planks. Kinsman was
exposed to this asbestos material when he cleared debris from the planks in
dismantling used scaffolding. (2) Some asbestos dust was produced from
Kinsman’s work ‘tying in’ scaffolding to insulated pipes or equipment.
(3) Asbestos fibers released by the work of other trades ‘float[ed] in the air,’
exposing Kinsman as he worked nearby. Kinsman did not wear a mask or
respirator at Unocal.
“Years later, Kinsman developed mesothelioma, an asbestos-induced
malignant cancer of the lining of the lungs. He sued scores of product
manufacturers and distributors, as well as several premises owners. Ultimately,
the case proceeded to a jury trial against Unocal, a ‘premises defendant,’ alone.
The parties stipulated that Kinsman was exposed to asbestos during his work at
Unocal. In addition, following uncontroverted expert testimony that labeled this
exposure a ‘substantial factor’ contributing to Kinsman’s development of
mesothelioma, the trial court granted a directed verdict for Kinsman on the issue
of causation. Because the parties also stipulated Kinsman bore no contributory
fault, the only disputed issues before the jury concerned whether, and to what
extent, Unocal was negligent, whether Kinsman’s wife suffered a loss of
consortium, and the amount of damages suffered by the Kinsmans.”
Other critical facts are in dispute. Kinsman presented evidence that
knowledge of asbestos dust as a hazard in the oil industry was well known by the
1950’s. In particular, the so-called Bonsib Report prepared by the Standard Oil
Company and released in 1937 identified the risks associated with asbestos dust in
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oil refineries. Kinsman argued that given industry knowledge, Unocal should
have warned Kinsman’s employer or adopted various safety measures. He
produced evidence showing that other oil companies in the 1950’s had adopted
various safety measures, including better ventilation, plant design, and use of
respirators.
Unocal conceded that it was aware of the hazards of asbestos dust by the
1950’s. But Unocal argued that Kinsman was not exposed to levels of asbestos
that were considered unsafe at the time. It contended that according to then-
existing industry standards, exposure to asbestos dust was considered unsafe only
in concentrations of 5 million particles per cubic foot or more, and that there was
no evidence that Kinsman was exposed to such concentrations. In denying
Unocal’s motion for a directed verdict on that basis, the trial court concluded this
standard was not tantamount to a government regulation, compliance with which
would protect Unocal from negligence claims. Kinsman, in closing argument,
pointed to the lack of evidence that Unocal complied with the industry standards,
as well as testimony questioning the validity of those standards.
Burke & Reynolds did not provide safety equipment to Kinsman, and there
is no specific evidence in the record regarding whether it, or any other contractor
working for Unocal, knew or should have known at the time Kinsman worked at
the refinery that asbestos posed a safety hazard.
Kinsman submitted his case on two theories of liability: first, a premises
liability theory, that Unocal was negligent in the use, maintenance, or management
of the areas where Kinsman worked; second, that Unocal was negligent in the
exercise of retained control over the methods of the work or the manner of the
work performed by Kinsman. The jury found for Kinsman only on the first
theory. It assigned Unocal 15 percent of the fault in causing Kinsman’s
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mesothelioma, with the remaining 85 percent of fault attributable to “all others,”
and awarded Kinsman over $3 million in compensatory damages against Unocal.
Unocal separately appealed from the judgment on the jury verdict and the
court’s denial of its motion for judgment notwithstanding the verdict. The Court
of Appeal consolidated the appeals and reversed the judgment. After reviewing
Privette, Toland, Camargo, Hooker and McKown, the court concluded that “a
contractor’s employee cannot recover under [a premises liability] theory unless the
landowner had control over the dangerous condition and affirmatively contributed
to the employee’s injury.” The court further rejected the argument that the
Privette doctrine does not apply because there is no proof the contractor was
negligent, and because the dangerous condition was created by other contractors
hired by Unocal rather than Unocal itself.
Because the jury instructions given did not accurately reflect Unocal’s
limited duty as understood by the Court of Appeal, the court reversed and
remanded for a new trial. However, the court opined that, in light of the jury’s
finding that Unocal did not retain control over Kinsman’s work, “if the jury had
been instructed about the limits on Unocal’s liability described in this opinion, it
would likely have concluded Unocal had no liability to Kinsman whatsoever ⎯
because Unocal did not retain control over the dangerous condition (i.e., airborne
asbestos) present on its land, or because the evidence did not show that Unocal
affirmatively contributed to Kinsman’s injury.” We granted review.
II. DISCUSSION
A. The Privette Doctrine
Our discussion begins with a review of Privette and its progeny. In
Privette, supra, 5 Cal.4th 689, a roofing contractor was responsible for installing a
new tar and gravel roof on a duplex. An employee was injured transporting five
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gallon buckets of hot tar up to the roof on a ladder, not using the kettle and
pumping device previously employed. The employee sought workers’
compensation benefits, but also sued in tort the owner of the duplex who had hired
the contractor for whom the employee worked, although the owner was not
present during the roofing process and did not participate in the contractor’s
decision to have the employee hand carry the buckets. (Privette, supra, 5 Cal.4th
at pp. 692-693.) The employee eventually focused on a single theory of liability,
that “because of the inherent danger of working with hot tar, [the owner] should,
under the doctrine of peculiar risk, be liable for injuries to [the employee] that
resulted from [the contractor’s] negligence.” (Ibid.)
The lower courts denied the owner’s summary judgment motion, but we
reversed, rejecting application in this context of the peculiar risk doctrine found in
the Restatement Second of Torts, section 416. As we explained: “At common law,
a person who hired an independent contractor generally was not liable to third
parties for injuries caused by the contractor’s negligence in performing the work.
[Citations.] Central to this rule of nonliability was the recognition that a person
who hired an independent contractor had ‘ “no right of control as to the mode of
doing the work contracted for.” ’ [Citations.] The reasoning was that the work
performed was the enterprise of the contractor, who, as a matter of business
convenience, would be better able than the person employing the contractor to
absorb accident losses incurred in the course of the contracted work. This could
be done, for instance, by indirectly including the cost of safety precautions and
insurance coverage in the contract price.” (Privette, supra, 5 Cal.4th at p. 693.)
We further explained that numerous exceptions to the rule of nonliability
developed over the years, including the peculiar risk doctrine. The basis for that
exception, as explained in a leading English case, was that a “ ‘man who orders a
work to be executed, from which, in the natural course of things, injurious
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consequences to his neighbor must be expected to arise . . . cannot relieve himself
of his responsibility by employing some one else . . . .’ [Citation.] . . . [T]he
English court held a landowner liable for damages to his neighbor’s property when
an independent contractor hired by the landowner to tear down an old house on his
land and to build a new one on the same site, but with a deeper foundation,
undermined the ground supporting the neighbor’s house.” (Privette, supra, 5
Cal.4th at p. 694.)
“The courts adopted the peculiar risk exception to the general rule of
nonliability 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.] 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. [Citation.] Also, by spreading the risk of
loss to the person who primarily benefited from the hired work, the courts sought
to promote workplace safety, a concern of great significance to the public.”
(Privette, supra, 5 Cal.4th at p. 694.)
We concluded that the justifications for the peculiar risk doctrine did not
apply to situations in which a contractor’s employee is injured and workers’
compensation is available. As we explained, the peculiar risk doctrine “seeks to
ensure that injuries caused by contracted work will not go uncompensated, that the
risk of loss for such injuries is spread to the person who contracted for and thus
primarily benefited from the contracted work, and that adequate safety measures
are taken to prevent injuries resulting from such work. [Citation.] But in the case
of on-the-job injury to an employee of an independent contractor, the workers’
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compensation system of recovery regardless of fault achieves the identical
purposes that underlie recovery under the doctrine of peculiar risk. It ensures
compensation for injury by providing swift and sure compensation to employees
for any workplace injury; it spreads the risk created by the performance of
dangerous work to those who contract for and thus benefit from such work, by
including the cost of workers’ compensation insurance in the price for the
contracted work; and it encourages industrial safety.” (Privette, supra, 5 Cal.4th
at p. 701.)
Several cases after Privette extended and elaborated upon its doctrine. In
Toland, supra, 18 Cal.4th 253, we rejected a hirer’s liability to an independent
contractor’s employee under Restatement Second of Torts, section 413, which
provides that 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, could
be held liable for the resultant injury. The plaintiff attempted to distinguish
section 413 from section 416 at issue in Privette, which imposes liability for
peculiar risks “even though the employer has provided for [special] precautions in
the contract or otherwise.” (Toland, supra, 18 Cal.4th at pp. 260, 263.) The
plaintiff argued that section 416 imposed vicarious liability whereas in section 413
liability was direct. We disagreed: “[P]eculiar risk liability is not a traditional
theory of direct liability for the risks created by one’s own conduct: Liability
under both sections is in essence ‘vicarious’ or ‘derivative’ in the sense that it
derives from the ‘act or omission’ of the hired contractor, because it is the hired
contractor who has caused the injury by failing to use reasonable care in
performing the work.” (Toland, supra, 18 Cal.4th at p. 265.) Therefore, “contrary
to plaintiff Toland’s assertion, our decision in Privette, supra, 5 Cal.4th 689, bars
employees of a hired contractor who are injured by the contractor’s negligence
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from seeking recovery against the hiring person, irrespective of whether recovery
is sought under the theory of peculiar risk set forth in section 416 or section 413 of
the Restatement Second of Torts. In either situation, it would be unfair to impose
liability on the hiring person when the liability of the contractor, the one primarily
responsible for the worker’s on-the-job injuries, is limited to providing workers’
compensation coverage.” (Toland, supra, 18 Cal.4th at p. 267.)
In Camargo, supra, 25 Cal.4th 1235, “we held that an employee of a
contractor is barred from suing the hirer of the contractor under the negligent
hiring theory set forth in [the Restatement Second of Torts,] section 411. Under
section 411, a hirer is liable for physical harm to third persons caused by the
hirer’s failure to exercise reasonable care to employ a competent contractor to
perform work that will involve a risk of physical harm unless it is skillfully and
carefully done, or to perform any duty the hirer owes to third persons. We rejected
the argument that Privette and Toland were distinguishable on the ground that in a
negligent hiring case the hirer is, in a sense, being taxed with his own negligence,
making his liability direct. ‘[T]he same could be said with regard to an action
brought under the peculiar risk theory set forth in section 413. More importantly,
under both sections 411 and 413, the liability of the hirer is “in essence ‘vicarious’
or ‘derivative’ in the sense that it derives from the ‘act or omission’ of the hired
contractor, because it is the hired contractor who caused the injury by failing to
use reasonable care in performing the work.” [Citation.] Therefore, in a negligent
hiring case under the theory set forth in section 411, just as in peculiar risk cases
under the theories set forth in sections 413 and 416, “it would be unfair to impose
liability on the hiring person when the liability of the contractor, the one primarily
responsible for the worker’s on-the-job injuries, is limited to providing workers’
compensation coverage.” [Citation.]’ ” (Hooker, supra, 27 Cal.4th at pp. 205-
206.)
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In Hooker, supra, 27 Cal.4th 198, a crane operator employed by an
independent contractor to help construct a freeway overpass for the California
Department of Transportation (Caltrans) would habitually retract the crane’s
stabilizing outrigger to allow other construction vehicles to pass. When Hooker
attempted to swing the boom of the crane without first extending the outrigger, the
weight of the boom caused the crane to tip over, and Hooker was thrown to the
pavement and killed. (Id. at p. 202.) According to the Caltrans construction
manual, Caltrans was responsible for compliance with safety laws and regulations,
and its construction safety coordinator was supposed to “ ‘recognize and
anticipate unsafe conditions’ ” in its construction projects. (Ibid.) Hooker’s estate
contended there was a triable issue regarding whether Caltrans was liable under a
“retained control theory” as described in the Restatement Second of Torts, section
414, which states: “One who entrusts work to an independent contractor, but who
retains the control of any part of the work, is subject to liability for physical harm
to others for whose safety the employer owes a duty to exercise reasonable care,
which is caused by his failure to exercise his control with reasonable care.”
We rejected Caltrans’s categorical argument that we should, for public
policy reasons, disallow any recovery by a contractor’s employee, even when the
hirer retains control over safety conditions. In arriving at this conclusion, we
recalled the rationale of Privette that “ ‘[a]t common law, a person who hired an
independent contractor generally was not liable to third parties for injuries caused
by the contractor’s negligence in performing the work. [Citations.] Central to
this rule of nonliability was the recognition that a person who hired an
independent contractor had “ ‘no right of control as to the mode of doing the work
contracted for.’ ” . . .’ On the other hand, if a hirer does retain control over safety
conditions at a worksite and negligently exercises that control in a manner that
affirmatively contributes to an employee’s injuries, it is only fair to impose
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liability on the hirer.” (Hooker, supra, 27 Cal.4th at p. 213, italics in original, fn.
omitted.)
At the same time, consistent with Privette’s rule against vicarious hirer
liability, we concluded that “it would be unfair to impose tort liability on the hirer
of the contractor merely because the hirer retained the ability to exercise control
over safety at the worksite. In fairness, . . . the imposition of tort liability on a
hirer should depend on whether the hirer exercised the control that was retained in
a manner that affirmatively contributed to the injury of the contractor’s employee.”
(Hooker, supra, 27 Cal.4th at p. 210, first italics added.) We elaborated that
“[s]uch affirmative contribution need not always be in the form of actively
directing a contractor or contractor’s employee. There will be times when a hirer
will be liable for its omissions. For example, if the hirer promises to undertake a
particular safety measure, then the hirer’s negligent failure to do so should result
in liability if such negligence leads to an employee injury.” (Hooker, supra, 27
Cal.4th at p. 212, fn. 3.)
Accordingly, in Hooker, we concluded summary judgment was appropriate
because Caltrans had not exercised its retained control in a manner that
affirmatively contributed to the employee’s injury. On the other hand, in the
companion case, McKown, supra, 27 Cal.4th 219, we upheld a jury verdict for an
injured employee against the hirer of the contractor, because the hirer had
furnished the employee with a defective forklift that had contributed to his injury.
(Id. at pp. 223-226.)
A useful way to view the above cases is in terms of delegation. As
suggested by Privette, at 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. (Privette, supra, 5 Cal.4th at p. 693.) For
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various policy reasons discussed in Privette, courts have severely limited the
hirer’s ability to delegate responsibility and escape liability. (Id. at p. 694.) But in
Privette and its progeny, we have concluded that, principally 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. In fact,
the policy in favor of delegation of responsibility and assignment of liability is so
strong in this context that we have not allowed it to be circumvented on a
negligent hiring theory. Nonetheless, when the hirer does not fully delegate the
task of providing a safe working environment, but in some manner actively
participates in how the job is done, and that participation affirmatively contributes
to the employee’s injury, the hirer may be liable in tort to the employee.
Using the framework of delegation, we can understand other cases in which
the hirer’s liability or potential liability has been found. In Ray v. Silverado
Constructors (2002) 98 Cal.App.4th 1120, the employee of a subcontractor was
killed when he was struck by a heavy wooden deck blown by a strong wind from a
bridge he was helping to construct. He was hit while attempting to secure other
construction materials that also had been blown from the bridge, after having
stopped his truck so as to block traffic from traveling into the hazardous area. (Id.
at p. 1124.) His estate sued the general contractor on a negligent retention of
control theory. The trial court granted summary judgment for the general
contractor, but the Court of Appeal reversed. It reasoned that a highway
contractor has a duty to exercise due care to protect the traveling public (see
Breslin v. Frederickson (1957) 152 Cal.App.2d 780, 786), and that duty may have
included the responsibility to close the road to prevent motorists from being
harmed by the wayward construction materials. (Ray v. Silverado Constructors,
supra, 98 Cal.App.4th at pp. 1134-1135.) The court concluded there was a triable
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issue as to whether the general contractor retained the sole authority to close the
road, and whether its failure to do so therefore constituted negligence that led
directly to the employee’s injury. (Id. at pp. 1134-1136.) In other words, the
general contractor may have been liable because its delegation of workplace safety
to the subcontractor, the plaintiff’s employer, was limited and did not authorize the
subcontractor to undertake the one safety measure that might have saved the
plaintiff’s life.
In Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, a case
that predates Privette, the employee of an independent contractor hired by the
cement company to work on its premises was electrocuted when the boom of a
crane used to repair the company’s rock crushing equipment became electrically
charged by coming in contact with overhead power lines during nighttime
operations. (Id. at p. 229-231.) In affirming a verdict for the plaintiff, the court
concluded there was evidence that these power lines posed a great hazard to the
independent contractor’s employees, particularly when the work was carried out at
night and the power lines were invisible, and that it was negligent not to request
that the power lines be deenergized. (Id. at pp. 231-234.) It was also clear from
the evidence that the company had the sole authority to request the state, which
controlled the power lines, to deenergize the power lines, and that the contractor’s
supervisor had requested the lines be deenergized but the company superintendent
refused because it would have required the plant to be shut down. (Id. at pp. 230-
232.) Therefore, because the hirer had not delegated to the contractor the
authority to undertake a critical employee safety measure, and the contractor’s
employee was injured as a result of that measure not being undertaken, the court
concluded the hirer could be liable to the employee.
With these principles in mind, we review the doctrine of landowner liability
and consider how this doctrine relates to the Privette doctrine.
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B. Landowner
Liability in General and for an Independent
Contractor’s Employees
“[T]he basic policy of this state set forth by the Legislature in section 1714
of the Civil Code is that everyone is responsible for an injury caused to another by
his want of ordinary care or skill in the management of his property. . . . The
proper test to be applied to the liability of the possessor of land in accordance with
section 1714 of the Civil Code is whether in the management of his property he
has acted as a reasonable man in view of the probability of injury to others, and,
although the plaintiff’s status as a trespasser, licensee, or invitee may in the light
of the facts giving rise to such status have some bearing on the question of
liability, the status is not determinative.” (Rowland v. Christian (1968) 69 Cal.2d
108, 118-119 (Rowland).) Applying these principles to the facts before it, in
which a social guest injured his hand on a cracked water faucet, the court stated:
“Where the occupier of land is aware of a concealed condition involving in the
absence of precautions an unreasonable risk of harm to those coming in contact
with it and is aware that a person on the premises is about to come in contact with
it, the trier of fact can reasonably conclude that a failure to warn or to repair the
condition constitutes negligence. Whether or not a guest has a right to expect that
his host will remedy dangerous conditions on his account, he should reasonably be
entitled to rely upon a warning of the dangerous condition so that he, like the host,
will be in a position to take special precautions when he comes in contact with it.”
(Id. at p. 119.)
This formulation is similar to the Restatement of Torts Second, section 343,
on which Kinsman in the present case partly relies. ‘“A possessor of land is
subject to liability for physical harm caused to his invitees by a condition on the
land if, but only if, he [¶] (a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an unreasonable risk of
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harm to such invitees, and [¶] (b) should expect that they will not discover or
realize the danger, or will fail to protect themselves against it, and [¶] (c) fails to
exercise reasonable care to protect them against the danger.”
“Generally, if a danger is so obvious that a person could reasonably be
expected to see it, the condition itself serves as a warning, and the landowner is
under no further duty to remedy or warn of the condition. [Citation] However,
this is not true in all cases. ‘[I]t is foreseeable that even an obvious danger may
cause injury, if the practical necessity of encountering the danger, when weighed
against the apparent risk involved, is such that under the circumstances, a person
might choose to encounter the danger.’ ” (Krongos v. Pacific Gas & Electric Co.
(1992) 7 Cal.App.4th 387, 393 [duty to protect against obvious electrocution
hazard posed by overhead electrical wires]; see also Rest.2d Torts, § 343A
[possessor of land liable for obvious danger if “the possessor should anticipate the
harm despite such . . . obviousness”].)
The question before us is how these general principles apply when a
landowner hires an independent contractor whose employee is injured by a
hazardous condition on the premises. As we have discussed, the hirer generally
delegates to the contractor responsibility for supervising the job, including
responsibility for looking after employee safety. When the hirer is also a
landowner, part of that delegation includes taking proper precautions to protect
against obvious hazards in the workplace. There may be situations, as alluded to
immediately above, in which an obvious hazard, for which no warning is
necessary, nonetheless gives rise to a duty on a landowner’s part to remedy the
hazard because knowledge of the hazard is inadequate to prevent injury. But that
is not this case, since Kinsman acknowledges that reasonable safety precautions
against the hazard of asbestos were readily available, such as wearing an
inexpensive respirator. Thus, when there is a known safety hazard on a hirer’s
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premises that can be addressed through reasonable safety precautions on the part
of the independent contractor, a corollary of Privette and its progeny is that the
hirer generally delegates the responsibility to take such precautions to the
contractor, and is not liable to the contractor’s employee if the contractor fails to
do so. We see no persuasive reason why this principle should not apply when the
safety hazard is caused by a preexisting condition on the property, rather than by
the method by which the work is conducted.
However, if the hazard is concealed from the contractor, but known to the
landowner, the rule must be different. A landowner cannot effectively delegate to
the contractor responsibility for the safety of its employees if it fails to disclose
critical information needed to fulfill that responsibility, and therefore the
landowner would be liable to the contractor’s employee if the employee’s injury is
attributable to an undisclosed hazard. Nothing in the Privette line of cases
suggests the contrary. As in Hooker and McKown, the hirer’s liability in such
circumstances would be derived from the hirer’s rather than the contractor’s
negligence.
In view of the above, the usual rules about landowner liability must be
modified, after Privette, as they apply to a hirer’s duty to the employees of
independent contractors. As noted, the Restatement Second of Torts, section 343,
states that the landowner’s duty is triggered when it “(a) knows or by the exercise
of reasonable care would discover the condition, and should realize that it involves
an unreasonable risk of harm to such invitees, and [¶] (b) should expect that they
will not discover or realize the danger, or will fail to protect themselves against
it.” (Italics added.) In light of the delegation doctrine reaffirmed by Privette, the
italicized phrase does not seem applicable to landowner liability for injuries to
employees of independent contractors. Because the landowner/hirer delegates the
responsibility of employee safety to the contractor, the teaching of the Privette line
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of cases is that a hirer has no duty to act to protect the employee when the
contractor fails in that task and therefore no liability; such liability would
essentially be derivative and vicarious. (See Toland, supra, 18 Cal.4th at pp. 268-
270 [no duty to supervise work based on the hirer’s “superior knowledge” of the
proper safety precautions].)2 But when the landowner knows or should know of a
concealed hazard on its premises, then under ordinary premises liability principles,
the landowner may be liable for a resultant injury to those employees.
We therefore disagree with the Court of Appeal in the present case
inasmuch as it holds that a landowner/hirer can be liable to a contractor’s
employee only when it has retained supervisory control and affirmatively
contributes to the employee’s injury in the exercise of that control. Rather,
consistent with the above discussion, the hirer as landowner may be independently
liable to the contractor’s employee, even if it does not retain control over the work,
if (1) it knows or reasonably should know of a concealed, pre-existing hazardous
condition on its premises; (2) the contractor does not know and could not
reasonably ascertain the condition; and (3) the landowner fails to warn the
contractor.3
The rule that landowners may be liable to contractors’ employees for
injuries resulting from latent hazardous conditions was followed in our pre-

2
The rule articulated above concerns specifically an employee’s injury while
at work on the landowner’s premises. This case does not present the question of
landowner liability when the employee is on the premises but not working, as
when, for example, the employee is on a part of the premises other than the
jobsite.
3
We emphasize that the proposed holding would not apply to a hazard
created by the independent contractor itself, of which that contractor necessarily is
or should be aware. (See Zamudio v. City and County of San Francisco (1999) 70
Cal.App.4th 445, 455.)
17

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Privette cases. In Markley v. Beagle (1967) 66 Cal.2d 951, for example, the
employee of an independent contractor, en route to repair a ventilation fan on the
hirer’s roof, was injured when a mezzanine railing inside the building gave way.
(Id. at p. 955.) As the court stated: “Plaintiff was an employee of an independent
contractor engaged by the tenant who operated the restaurant to service the
ventilating system. He was therefore a business invitee of the owners to whom
they owed a duty of reasonable care. They knew or should have known that he
would use the mezzanine to get to the fan on the roof, and the jury could
reasonably conclude that . . . the owners were negligent in failing to discover the
dangerous condition of the railing and to either correct it or adequately warn
plaintiff of it.” (Id. at pp. 955-956.) Nothing in the Privette line of cases suggests
that Markley is no longer good law.
Abrons v. Richfield Oil Corp. (1961) 190 Cal.App.2d 640, cited by Unocal,
is not to the contrary. In Abrons, the employee of an independent contractor was
injured when an oil-saturated ditch on the property of the hirer, the Richfield Oil
Corporation, caved in. The Court of Appeal affirmed the nonsuit judgment against
the employee, stating: “ ‘The Richfield employees exercised no supervision or
control of the [contractor’s] employees in the course of the latter’s work . . . .’. . .
The appellant observed that the ground that was being excavated was ‘oil
saturated.’ His testimony, as set forth in the settled statement, was that the ‘deeper
he dug the more oil saturation manifested itself and there was an oily odor within
the excavation.’ Braun furnished no shoring materials. No one ‘from the
Richfield Oil Corporation was present at any time and no one from Richfield
observed the work or assisted in any way.’ ” (Id. at p. 646.) Although the Abrons
court focused on the hirer’s lack of supervision and control, the fact that is most
telling from the perspective of the present issue is that the hazard in question, the
18

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oil-saturated ground, although perhaps initially concealed, soon became apparent,
and the contractor nonetheless failed to take appropriate safety precautions. 4
Another case cited by Unocal, Grahn v. Tosco Corp. (1997) 58 Cal.App.4th
1373 (Grahn), decided after Privette but before Toland and the other cases,
resembles the present case factually and merits discussion. The employee of an
independent contractor contracted asbestos-related lung disease from removing

4
Other jurisdictions have taken a variety of approaches to the issue of
landowner liability to employees of independent contractors, and no single
approach has emerged as dominant. In some cases, there are no special rules for
liability toward contractor’s employees, and general negligence rules are applied.
(Roberts v. Owens-Corning Fiberglas Corp. (La.Ct.App. 2004) 878 So.2d 631,
639, fn. 5.) Some have not rejected the peculiar risk doctrine in this context and/or
have embraced the “superior knowledge” doctrine advocated by the Toland
concurring and dissenting opinion discussed below. (PSI Energy, Inc. v. Roberts
(Ind. 2005) 2005 WL 1515100; Gutteridge v. A.P. Green Services, Inc.
(Pa.Super.Ct. 2002) 804 A.2d 643, 656-658.) Other courts have endorsed rules
similar to the one formulated in this opinion. (Jablonski v. Fulton Corners, Inc.
(N.Y.Civ.Ct. 2002) 748 N.Y.S.2d 634, 638 [landowner liability for defects on
premises of which it had actual or constructive notice]; Plock v. Crossroads Joint
Venture (Neb. 1991) 475 NW.2d 105,118-119 [employer-landowner liable to
contractor’s employees for latent defects known to employer but not to
contractor]; Glenn v. United States Steel Corp., Inc. (Ala. 1982)) 423 So.2d 152,
154 [employer not liable for defects that the contractor reasonably should have
been aware of].) Other courts allow for recovery only on the theory that the
employer has actively retained control of the jobsite and the contractor’s work.
(Callahan v. Alumax Foils, Inc. (Mo.Ct.App. 1998) 973 S.W.2d 488, 490; Fisher
v. Lee and Chang Partnership (Tx.Ct.App. 2000) 16 S.W.3d 198, 200-201 [under
Texas statute, retained control and knowledge of latent defect required for
premises liability toward the contractor’s employee].) In at least one jurisdiction,
the landowner is not liable for injuries occurring on the premises where it has
temporarily surrendered possession and control of those premises to the
contractor. (West v. Briggs & Stratton Corp. (Ga.Ct.App. 2000) 536 S.E.2d 828,
832.) In other cases, the rule is not so clear. (See Jones v. James Reeves
Contractors, Inc. (Miss. 1997) 701 So.2d 774, 782-783 [stating a rule of employer
liability based on actual control of contract’s work, but suggesting there may be
liability for latent defects].)
19

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and installing insulation on defendant’s jobsite in the 1970’s. The plaintiff
proceeded on three theories, negligent hiring, retained control, and premises
liability.5 As to the latter theory, the Court of Appeal held that the general
negligence instruction given to the jury was prejudicially misleading. “While a
hirer has a duty to maintain its premises in a reasonably safe condition for
employees of an independent contractor, not every dangerous condition on the
hirer’s premises subjects the hirer to liability for physical harm to the independent
contractor’s employees. Where the operative details of the work are not under the
control of the hirer and the dangerous condition causing injury is either created by
the independent contractor or is, at least in part, the object of the work of the
independent contractor, the duty to protect the independent contractor’s employees
from hazards resides with the independent contractor and not the hirer who may
also generally control the premises.” (Grahn, supra, 58 Cal.App.4th at p. 1398.)
We find the above formulation somewhat confusing and only partly correct.
It is not clear, in the context of premises liability, what it means to say that
“[w]here . . . the dangerous condition causing injury is either created by the
independent contractor or is, at least in part, the object of the work of the
independent contractor, the duty to protect the independent contractor’s
employees from hazards resides with the independent contractor and not the hirer
who may also generally control the premises.” (Grahn, supra, 58 Cal.App.4th at
p. 1398, italics added.) If the employee of an independent contractor as part of his
job, for example, burrows into ground belonging to the landowner/hirer, and is
injured when he ruptures an underground storage tank containing a hazardous

5
Grahn’s treatment of the first two theories was disapproved of in Camargo,
supra, 25 Cal.4th at page 1245 and Hooker, supra, 27 Cal.4th at page 214.
20

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substance that the landowner knew was present but the contractor did not, the
dangerous condition causing the injury was arguably “the object of the work of the
independent contractor.” (Ibid.) But that fact should not preclude landowner
liability. What is critical in the above hypothetical is that if the landowner knew
or should have known of the hazard and the contractor did not know and could not
have reasonably discovered it, then the landowner delegated the responsibility for
employee safety to the contractor without informing the contractor of critical
information that would allow the contractor to fulfill its responsibility. Under
such circumstances the landowner may be liable. Nor would it matter, as Unocal
argues, that the substance was not hazardous until the employee performed a
certain action that released the hazard. The landowner may be liable for any
injury from a latent hazard that a contractor’s employee would foreseeably
encounter. (See Rowland, supra, 69 Cal.2d at p. 119.)
But Grahn’s statement regarding the hirer’s nonliability for hazards on the
premises related to “the object of the work of the independent contractor” (Grahn,
supra, 58 Cal.app.4th at p. 1398) does point to an important limitation on a
landowner’s duty toward the contractor’s employees. A landowner’s duty
generally includes a duty to inspect for concealed hazards. (See Ortega v. Kmart
Corp. (2001) 26 Cal.4th 1200, 1205.) But the responsibility for job safety
delegated to independent contractors may and generally does include explicitly or
implicitly a limited duty to inspect the premises as well. Therefore, the principles
enunciated in Privette suggest that the landowner would not be liable when the
contractor has failed to engage in inspections of the premises implicitly or
explicitly delegated to it. Thus, for example, an employee of a roofing contractor
sent to repair a defective roof would generally not be able to sue the hirer if
injured when he fell through the same roof due to a structural defect, inasmuch as
inspection for such defects could reasonably be implied to be within the scope of
21

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the contractor’s employment. On the other hand, if the same employee fell from a
ladder because the wall on which the ladder was propped collapsed, assuming that
this defect was not related to the roof under repair, the employee may be able to
sustain a suit against the hirer. Put in other terms, the contractor was not being
paid to inspect the premises generally, and therefore the duty of general inspection
could not be said to have been delegated to it. Under those circumstances, the
landowner’s failure to reasonably inspect the premises, when a hidden hazard
leads directly to the employee’s injury, may well result in liability.
C. Application to the Present Case
The crux of Kinsman’s case is that Unocal knew that asbestos used to
insulate the pipes found at its refinery, which was released as dust when the
insulation was replaced, was hazardous; furthermore, Kinsman and the contractor
for whom he worked did not know of the hazard, either because they did not know
they were being exposed to airborne asbestos or did not know that asbestos was
hazardous. In light of these facts, Kinsman contends Unocal was negligent in
failing to warn the contractor or failing to provide proper safety equipment.
As an initial matter, we note there is no reason to distinguish conceptually
between premises liability based on a hazardous substance that is concealed
because it is invisible to the contractor and known only to the landowner and a
hazardous substance that is visible but is known to be hazardous only to the
landowner. If the hazard is not reasonably apparent, and is known only to the
landowner, it is a concealed hazard, whether or not the substance creating the
hazard is visible. Unocal does not appear to dispute this proposition.
Unocal contends, however, that knowledge of the hazards of asbestos was
public at the time Kinsman was injured in the 1950’s, and that Kinsman is in effect
attempting to resurrect the “superior knowledge” theory of liability proposed by
22

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Justice Werdegar’s concurring and dissenting opinion in Toland, which was
rejected by the majority. As the concurring and dissenting opinion stated:
“[W]hen conditions within the special knowledge or control of the hirer create a
danger inherent and peculiar to the work, there is no justification in statute, policy
or precedent to immunize the hirer from tort liability for his or her own failure to
require reasonable precautions be taken against the danger. Tort liability for
injuries to the contractor’s employees should, therefore, be recognized only when
the hirer ‘was in a better position than the contractor either to anticipate dangers to
workmen, to foresee and evaluate the best methods of protection, or to implement
and enforce compliance with appropriate on-site safety precautions.’ ” (Toland,
supra, 18 Cal.4th at p. 271 (conc. & dis. opn. of Werdegar, J.).)
The Toland majority concluded that the standard was impractical and
would undermine the Privette doctrine. (Toland, supra, 18 Cal.4th at p. 268.)
“The term ‘superior knowledge’ has superficial appeal when considered in the
abstract, but its practical application presents considerable difficulties. How is a
trier of fact to determine whether to impose liability based on the relative
knowledge of two parties, each of whom is ‘knowledgeable’ in some form or
degree? Must the general contractor’s knowledge be ‘superior’ with regard to
industry practices or must it be ‘superior’ with regard to the actual instrumentality
of the injury? Does a general contractor with 25 years of experience in the
construction industry possess greater or lesser knowledge than a subcontractor
with 5 years of experience in a particular building trade? There is little basis on
which a jury could sensibly impose liability using the concurring and dissenting
opinion’s ‘comparative knowledge’ rule.” (Toland, supra, 18 Cal.4th at p. 268.)
The majority concluded: “In the end, the concurring and dissenting opinion would
effectively deprive general contractors of a right available to any other hiring
23

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person: the right to delegate to independent contractors the responsibility of
ensuring the safety of their own workers.” (Id. at p. 269.)
The theory of premises liability we adopt in this case is significantly
different from the superior knowledge theory for several reasons. First, under the
premises liability theory, the hirer would only have liability if the contractor did
not know and could not reasonably have ascertained the hazard, and therefore the
practical problem of identifying whose knowledge is superior does not come into
play. Furthermore, whereas the “superior knowledge” theory applies generally to
“special risk[s] or the precautions necessary to avoid [them]” (Toland, supra, 18
Cal.4th at p. 277 (conc. & dis. opn. of Werdegar, J.), the premises liability doctrine
articulated here applies only to preexisting hazardous conditions on the
landowner’s premises. We would not be creating a new duty or liability but rather
applying, and in fact limiting, a duty traditionally imposed on landowners.
Moreover, we fully reaffirm the right of hirers “to delegate to independent
contractors the responsibility of ensuring the safety of their own workers.” (Id. at
p. 269.) But we would recognize that such delegation is ineffective when the
hirer, as landowner, fails to provide the contractor with the information ⎯ the
existence of a latent hazard ⎯ necessary to fulfill that responsibility.
In fact, Kinsman claims that this is a latent hazard case, and disavows any
reliance on the “superior knowledge” theory. He argues that there was no
evidence that Kinsman’s employer, Burke & Reynolds, had any knowledge, in the
1950’s when Kinsman’s injuries were incurred, that asbestos dust was hazardous,
and that there was considerable evidence that Unocal knew of the hazards.
Kinsman further points out that the present case differs significantly from Grahn,
in which a premises liability theory based on asbestos exposure was rejected, in
that the exposure in Grahn occurred in the late 1970’s and 1980’s, after asbestos
had become widely recognized as a carcinogen. (Grahn, supra, 58 Cal.App.4th at
24

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pp. 1380-1381.) Therefore the Grahn court was justified in stating that the hirer
was “entitled to assume” that the contractor would take proper safety precautions
(id. at p. 1398), an assumption that did not apply in the 1950’s when the injury in
question occurred.
Unocal argues that Toland not only rejected the “superior knowledge”
theory, but held that the hirer’s liability as a landowner to the independent
contractor is limited to instances of fraudulent concealment, and that there is no
evidence of fraudulent concealment in the present case. As Toland stated: “Our
decision in no way precludes employees of independent contractors from seeking
recovery from a general contractor or other hiring person for personal injury
resulting from a failure to disclose a concealed preexisting danger at the site of the
hired work that was known to the hiring person. Recovery in such a case would
be for fraudulent concealment or misrepresentation, however, and would not
involve the ‘comparative knowledge’ analysis proposed by the concurring and
dissenting opinion, nor would it depend on the peculiar risk doctrine.” (Toland,
supra, 18 Cal.4th at pp. 269-270, fn. 4.)
The above statement, while correct, is incomplete. “It is axiomatic that
language in a judicial opinion is to be understood in accordance with the facts and
issues before the court. An opinion is not authority for propositions not
considered.” (Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19
Cal.4th 1182, 1195.) Toland did not involve premises liability for latent hazards,
and the court had no occasion to decide the precise conditions under which such
liability would attach. (Toland, supra, 18 Cal.4th at p. 257 [plaintiff injured while
helping to raise a heavy wall during the construction project].) As explained
above, landowner liability in this instance is measured by a negligence standard,
and therefore a landowner would be liable not only when it deliberately withholds
information but also when it negligently fails to discover or disclose latent
25

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hazards. (See Markley v. Beagle, supra, 66 Cal.2d at pp. 955-956.) Therefore, the
element of fraudulent intent required in fraudulent concealment cases (see City of
Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th
445, 482) is not necessary for premises liability in the present circumstances.
Unocal, following the Court of Appeal, further contends that what hazards
existed on the jobsite were created by other independent contractors and were not
Unocal’s responsibility. We agree in the abstract that a landowner that does not
retain control is not liable for an injury inflicted by an independent contractor or
its employees on the employee of another independent contractor. As discussed,
Privette recognized the rule at common law that “a person who hired an
independent contractor generally was not liable to third parties for injuries caused
by the contractor’s negligence in performing the work.” (Privette, supra, 5
Cal.4th at p. 693.) That rule was eventually limited by the need to fairly
compensate the victims of the contractor’s negligence, but that limitation is
unnecessary when workers’ compensation benefits, paid for indirectly by the hirer
in the cost of the job, are available. (Id. at pp. 694, 699-700.) Such is the case
here, because workers’ compensation coverage insures against all injuries in the
course of employment, including injuries inflicted by employees of other
contractors. (See Lab. Code, § 3600; Dimmig v. Workmen’s Comp. Appeals Bd.
(1972) 6 Cal.3d 860, 865 [workers’ compensation covers all acts reasonably
contemplated by the employment].) Therefore, although the policy considerations
are not identical to those in Privette in every respect, they point to a similar
conclusion: that, as at common law, the hirer/landowner who has not retained
control over the work should not be derivatively or vicariously liable for injuries
contemporaneously inflicted by an independent contractor on another contractor’s
employee. (See Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77, 96, disapproved
other grounds in Camargo, supra, 25 Cal.4th at p. 1245 [coming to the same
26

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conclusion].)6 As elaborated below, however, Kinsman argues there is no
evidence that other independent contractors’ negligence led to his injury.
Finally, Unocal argues that even if Kinsman’s claim against it does not fail
as a matter of law, the present verdict cannot stand because the jury was not
properly instructed. As discussed, the trial court instructed the jury both on a
premises liability theory and a negligent retention of control theory, and rendered
a plaintiff’s verdict on only the former. As to that former theory, the jury received
a modified BAJI No. 8.01 instruction: “The owner or occupant of premises is
under a duty to exercise ordinary care in the use, maintenance, and management of
the premises in order to avoid exposing persons to an unreasonable risk of harm.
This duty exists whether the risk of harm is caused by the natural condition of the
premises or by an artificial condition created on the premises. This duty is owed
to persons on the premises and to persons off the premises. A failure to fulfill this
duty is negligence. [¶] Ordinary care is that care which persons of ordinary
prudence would use in order to avoid injury to themselves or others under
circumstances similar to those shown by the evidence. [¶] You must determine
whether a person under the same or similar circumstances as the defendant Unocal
should have foreseen that a person such as the plaintiff Ray Kinsman would be
exposed to an unreasonable risk of harm. If you so find, you are instructed that the
defendant Unocal owed plaintiff Ray Kinsman a duty of care and you should
determine if the defendant exercised that care, considering all the surrounding
circumstances shown by the evidence.”

6
This rule, of course, does not extend to hazardous conditions created by
other independent contractors that, after a passage of time, become latent hazards
on the premises that a landowner is aware of or should have reasonably
discovered.
27

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The above instruction, while an accurate statement of premises liability
generally, is partly erroneous when applied to the present situation. As discussed,
when, as in the present case, the “dangerous or defective condition” is one which
can be remedied by taking reasonable safety precautions, the landowner who has
delegated job safety to the independent contractor only has a duty to the employee
if the condition is concealed. Because the general premises liability instruction
given does not make clear that the hazard must have been unknown and not
reasonably ascertainable to the independent contractor that employed Kinsman
and to other contractors working contemporaneously on the premises ⎯ the jury
was instructed in error.
When deciding whether an instructional error was prejudicial, “we must
examine the evidence, the arguments, and other factors to determine whether it is
reasonably probable that instructions allowing application of an erroneous theory
actually misled the jury.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548,
581, fn. 11.) A “reasonable probability” in this context “does not mean more
likely than not, but merely a reasonable chance, more than an abstract
possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
We conclude that the failure to properly instruct the jury in this case was
prejudicial. Although the jury, in finding Unocal negligent under a premises
liability theory, implicitly found that Unocal knew or should have known of the
hazard of asbestos dust on its property, it made no finding about whether
Kinsman’s employer, Burke & Reynolds, or any other contractor working at the
same time as Kinsman, knew or should have known of the hazard, and whether
Unocal was or should have been aware that these contractors did not know of the
hazard. As discussed, a finding that these contractors did know that the dust in the
refinery was asbestos and was hazardous to an employee like Kinsman, would,
28

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under the principles articulated in the Privette line of cases and in this opinion,
completely relieve Unocal of liability for any resultant employee injury.
Whether a hazard is concealed is a factual matter, and the record before us
is inconclusive on this issue. On the one hand, there is no evidence in the record
before us regarding whether Burke & Reynolds, or any other contractor working
on the job site, knew about the hazards of asbestos or even whether asbestos was
present. In fact, Kinsman points out that there was no evidence that Unocal used
independent contractors, as opposed to its own employees, to remove and replace
the insulation.
On the other hand, the various reports issued to the oil industry in the
1930’s and 1940’s, from which Unocal obtained its knowledge, were not secret or
classified, and there was a limited public knowledge about the health hazards of
asbestos dust.7 Unocal further points to the jury’s finding that the 85 percent of
the liability for Kinsman’s injury was attributable to “all others,” and contends that
that the jury implicitly found other independent contractors at fault for his injury.
It conjectures that the jury implicitly found that Unocal was negligent in its failure
to properly supervise and monitor these independent contractors, which under the

7
The state of the general public’s knowledge of the hazards of asbestos in
the 1950’s was summarized in the deposition testimony of Dr. Barry Castleman,
an environmental health consultant testifying for Kinsman. He stated that there
“were scattered reports in such places as Scientific American in 1949. . . . [I]f you
knew to look up cancer in the encyclopedia [Britannica], you see a reference to
asbestos as a cause of occupational cancer there. But, I mean, aside from these
very few things, you know a scant quote of Dr. Hueper saying that maybe things
like asbestos and other carcinogens are responsible for the rising rate of lung
cancer in cities, in Newsweek in May 1950. I mean, you can count these things
almost on one hand. It wasn’t really until the 1970s with the environmental
movement, with the creation of federal agencies like the Environmental Protection
Agency and OSHA, with the kind of media coverage that came with that, the
people started, and the general population, to know about asbestos.”
29

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Privette doctrine could not serve as a basis of liability. Kinsman contends to the
contrary that the “all others” refers to asbestos manufacturers and related entities.
It is not clear from the record before us which contention is correct.
In short, a properly instructed jury may have concluded, based on the
record before us, that the contractors knew or should have known about the
airborne asbestos hazard, which would have meant a verdict in Unocal’s favor.
But the evidence does not compel that conclusion. Because the evidence is
capable of inferences in both Kinsman’s and Unocal’s favor, and because the
concealed hazards issue was never properly submitted to the jury, it is appropriate
to reverse the judgment and to remand for a new trial on that issue.8

8
Unocal argued in its motion for a judgment notwithstanding the verdict, and
continues to argue before this court, that, apart from the Privette issue, there was
insufficient evidence to support the jury’s finding that Unocal was negligent,
because of the lack of evidence that Kinsman was exposed to asbestos at levels
then thought to be unsafe under prevailing industry standards. Kinsman asserts
the contrary, as explained in the statement of facts above. Although the Court of
Appeal consolidated Unocal’s appeal from the denial of that motion with its
appeal from the jury verdict, it never ruled on the denial of the motion or on the
insufficient evidence issue, perhaps because its disposition was tantamount to a
death knell for Kinsman’s action. We do not decide the sufficiency of the
evidence issue in the first instance, which is not fairly included within the scope of
the issues of which we granted review, but rather direct the Court of Appeal to
decide it on remand.
30

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III. DISPOSITION
The judgment of the Court of Appeal is affirmed in part, inasmuch as it
overturns the judgment of the trial court, but reversed inasmuch as its instructions
on remand to the trial court are at variance with the principles set forth in this
opinion. The case is remanded to the Court of Appeal for proceedings consistent
with this opinion.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORNELL,
J.*

*
Associate Justice of the Court of Appeal, Fifth Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
31

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

Name of Opinion Kinsman v. Unocal Corp.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 110 Cal.App.4th 826
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S118561
Date Filed: December 19, 2005
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: Paul H. Alvarado
__________________________________________________________________________________

Attorneys for Appellant:

Horvitz & Levy, David M. Axelrad, Stephen E. Norris; Walsworth, Franklin, Bevins & McCall, Michael T.
McCall, Robert M. Channell, Cyrian B. Tabuena and Allan W. Ruggles for Defendant and Appellant.

Charles H. Haake; Gibson, Dunn & Crutcher, Andrea E. Neuman; Knott & Glazier, Steven E. Knott and
Guy P. Glazier for Lockheed Martin Corporation as Amicus Curiae on behalf of Defendant and Appellant.

Sedgwick, Detert, Moran & Arnold and Frederick D. Baker for American Chemistry Council as Amicus
Curiae on behalf of Defendant and Appellant.

Deborah J. La Fetra and Timothy Sandefur for Pacific Legal Foundation as Amicus Curiae on behalf of
Defendant and Appellant.

Greines, Martin, Stein & Richland, Marc J. Poster and Robert A. Olson for Farmers Insurance Exchange,
Truck Insurance Exchange, Fire Insurance Exchange and Mid-Century Insurance Company as Amici
Curiae on behalf of Defendant and Appellant.

Graves & King, Patrick L. Graves, Harvey W. Wimer and Dennis J. Mahoney for Lennar Corporation as
Amicus Curiae on behalf of Defendant and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Law Offices of Daniel U. Smith, Daniel U. Smith, Ted W. Pelletier; Wartnick, Chaber, Harowitz &
Tigerman, The Wartnick Law Firm, Harvey F. Wartnick, Charles C. Kelly II, Steven M. Harowitz, Stephen
M. Tigerman and Richard A. Brody for Plaintiffs and Respondents.

James C. Sturdevant; Sharon Arkin; The Arns Law Firm, Morgan C. Smith, Jonathan E. Davis and Robert
S. Arns for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and Respondents.

Ropers, Majeski, Kohn & Bentley, Mark G. Bonino and Elisa Nadeau for American International
Companies as Amicus Curiae.

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

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

Daniel U. Smith
Law Offices of Daniel U. Smith
Post Office Box 278
Kentfield, CA 94914
(415) 461-5630

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Opinion Information

Date:	Docket Number:
Mon, 12/19/2005	S118561

Disposition
Dec 19 2005	Opinion: Affirmed in part/reversed in part

Dockets
Aug 28 2003	Petition for review filed   By counsel for Respondents {Ray Kinsman et al.,} / 40(K).
Aug 28 2003	Record requested
Sep 5 2003	Received Court of Appeal record   file jacket/briefs/transcripts/one box
Sep 11 2003	Received:   from counsel for appellant (Unocal Corp.) request for extension of time to file Answer to Petition for Review September 24, 2003.
Sep 16 2003	Request for depublication (petition for review pending)   Asbestos Victims of America (non-party)
Sep 16 2003	Request Denied   counsel for appellant for extension of time to September 24, 2003 to file answer to petition for review.
Sep 17 2003	Answer to petition for review filed   by counsel for appellant (Unocal Corp.)
Oct 21 2003	Time extended to grant or deny review   to and including November 26, 2003, or date upon which review is either granted or denied.
Oct 29 2003	Petition for Review Granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar & Moreno, JJ.
Nov 21 2003	Certification of interested entities or persons filed   by counsel for (Unocal Corp.)
Dec 1 2003	Request for extension of time filed   counsel for resp. (Kinsman) requests an extension of time to December 31, 2003 to file the opening brief on the merits. (40k) Fed. Exp.
Dec 4 2003	Extension of time granted   Respondent's time to serve and file the opening brief on the merits is extended to and including December 31, 2003.
Dec 31 2003	Opening brief on the merits filed   by counsel for resp.(Ray Kinsman, et al.)
Jan 13 2004	Request for extension of time filed   Counsel for aplt. (Unocal) requests extension of time to March 1, 2004, to file the answer brief on the merits.
Jan 15 2004	Extension of time granted   Appellant's time to serve and file the answer brief on the merits is extended to and including March 1, 2004.
Jan 23 2004	Change of Address filed for:   Wartnick Law Firm
Feb 23 2004	Request for extension of time filed   counsel for resp. requests extension of time to March 31, 2004 to file the answer brief on the merits.
Mar 1 2004	Extension of time granted   Respondent's time to serve and file the answer brief on the merits is extended to and including March 31, 2004.
Apr 1 2004	Application to file over-length brief filed   by counsel for aplts. (Unocal) (40k)
Apr 1 2004	Received:   from counsel for aplts. (Unocal) over-length brief.
Apr 5 2004	Answer brief on the merits filed   with permission by counsel fior resp. (Unocal Corp.)
Apr 5 2004	Association of attorneys filed for:   counsel for resp. (Unocal Corp) associates Horvitz & Levy as co-counsel.
Apr 23 2004	Request for extension of time filed   counsel for respondent requests extension of time to May 26, 2004 to file the reply brief on the merits.
Apr 27 2004	Extension of time granted   Respondent's time to serve and file the reply brief on the merits is extended to and including May 26, 2004.
May 13 2004	Filed:   by counsel for deft.and aplt. (Unocal) Notice of Errata to Answer Brief on the Merits.
May 26 2004	Request for extension of time filed   counsel for resp. (Kinsman) requests extension of time to June 25, 2004, to file the reply brief on the merits.
Jun 1 2004	Extension of time granted   Respondent's time to serve and file the reply brief on the merits is extended to and including June 25, 2004.
Jun 25 2004	Filed:   by counsel for petnr. (Kinsman) request for unopposed 3-day extension to file reply brief on the merits.
Jun 29 2004	Received:   from counsel for petnr. over-sized Reply Brief on the Merits. (40k)
Jun 29 2004	Application to file over-length brief filed   counsel for petnr. (40k)
Jul 1 2004	Reply brief filed (case fully briefed)   with permission by counsel for petnr.
Jul 27 2004	Request for extension of time filed   by Consumer Attorneys Association of Calif. to file an amicus curiae brief, to 8-13-04. **permission granted, order being prepared.
Jul 28 2004	Received application to file Amicus Curiae Brief   LOCKHEED MARTIN CORP. in support of appellant Unocal. separate amicus curiae brief, request for judicial notice , and appendix of extra-jurisdictional authorities.
Jul 29 2004	Received application to file Amicus Curiae Brief   LENNAR CORPORATION in support of appellant Unocal.
Jul 29 2004	Received application to file Amicus Curiae Brief   PACIFIC LEGAL FOUNDATION in support of appellant Unocal.
Jul 29 2004	Request for extension of time filed   by American Chemistry Council to file an amicus curiae brief. Extension requested to 8-16-04.
Aug 2 2004	Received application to file Amicus Curiae Brief   Farmers Insurance Exchange, etal [in support of appellant]
Aug 3 2004	Received application to file Amicus Curiae Brief   American Intl. Companies (non-party) (40k)
Aug 5 2004	Permission to file amicus curiae brief granted   American International Companies (non-party)
Aug 5 2004	Amicus curiae brief filed   by American International Companies. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 5 2004	Permission to file amicus curiae brief granted   Pacific Legal Foundation in support of appellant. (non-party)
Aug 5 2004	Amicus curiae brief filed   Pacific Legal Foundation. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 5 2004	Permission to file amicus curiae brief granted   Lennar Corporation in support of appellant. (non-party)
Aug 5 2004	Amicus curiae brief filed   by Lennar Corporation. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 5 2004	Extension of time granted   Consumer Attorneys Association of California (non-party) time to serve and file its amicus curiae brief in support of respondents is extended to and including August 16, 2004. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 5 2004	Extension of time granted   American Chemistry Council (non-party) time to serve and file its amicus curiae brief is extended to and including August 16, 2004. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 5 2004	Permission to file amicus curiae brief granted   Lockheed Martin Corporation in support of appellant (non-party)
Aug 5 2004	Amicus curiae brief filed   Lockheed Martin Corporation. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 5 2004	Request for judicial notice filed (granted case)   by Lockheed Martin Corporation with Appendix of extra-jurisdictional authorities in support of appellant.
Aug 6 2004	Received application to file Amicus Curiae Brief   American Chemistry Council (brief under same cover)
Aug 9 2004	Permission to file amicus curiae brief granted   Farmers Insurance Exchange, et al., (non-party)
Aug 9 2004	Amicus curiae brief filed   Farmers Insurance Exchange, et al., in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 10 2004	Permission to file amicus curiae brief granted   American Chemistry Council in support of appellant. (non-party)
Aug 10 2004	Amicus curiae brief filed   American Chemistry Council in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 10 2004	Request for extension of time filed   counsel for resp. (Unocal) requests extension of time to Sept.30, 2004 and requests permission to file consolidated answer to amici briefs.
Aug 11 2004	Request for extension of time filed   counsel for respondent request permission to file a consolidated answer to amici briefs, Request for Judicial Notice and extension of time to September 30, 2004.
Aug 12 2004	Extension of time granted   respondent's time to serve and file the consolidated answer to amici briefs and request for judicial notice is extended to and including September 30, 2004.
Aug 16 2004	Amicus curiae brief filed   Consumer Attorneys of California. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 19 2004	Notice of substitution of counsel   (filed) Cyrian Tabuena in place of Allan Ruggles for aplt Unocal.
Aug 25 2004	Extension of time granted   Respondent's time to serve and file the consolidated answer to amici briefs is extended to and including September 30, 2004.
Sep 24 2004	Request for extension of time filed   Counsel for aplt. (Unocal) requests 30-day extension to October 30, 2004 to file the consolidated answer to amici briefs.
Sep 28 2004	Extension of time granted   Appellant's time to serve and file the consolidated answer to amici briefs is extended to and including November 1,. 2004.
Sep 29 2004	Request for extension of time filed   Counsel for aplt. (Kinsman) requests extension of time to Oct, 30, 2004, to file the consolidated answer to amici briefs and Judicial Notice.
Oct 1 2004	Extension of time granted   Counsel for appellant's time to serve and file the consolidated answer to amici briefs and request for judicial notice is extended to and including November 1, 2004.
Oct 25 2004	Request for extension of time filed   Counsel for aplt. (Unocal) requests extension of time to November 16, 2004, to file the consolidated answer to amici briefs.
Oct 26 2004	Extension of time granted   Appellant's time to serve and file the consolidated answer to amici briefs is extended to and including November 16, 2004.
Oct 27 2004	Request for extension of time filed   counsel for resp. (Kinsman. et al.,) requests extension of time to file consolidated answer to amici briefs and to Request for Judicial Notice, to November 16, 2004.
Oct 29 2004	Extension of time granted   Respondent's time to serve and file the consolidated answer to amici briefs and to the Request for Judicial Notice is extended to and including November 16, 2004.
Nov 15 2004	Request for extension of time filed   counsel for (Unocal Corp.) requests extension of time to 11-19-04 to file a consolidated answer to all amicus curiae briefs and to Request for Judicial Notice.
Nov 17 2004	Response to amicus curiae brief filed   by counsel for aplt. (Unocal Corp.) (consolidated answer to amici briefs) (40k)
Nov 19 2004	Request for extension of time filed   counsel for (Unocal Corp. requests a 1-day extension of time to file a consolidated answer to amici curiae briefs and Request for Judicial Notice.
Nov 23 2004	Response to amicus curiae brief filed   by counsel for (Unocal Corp.) (consolidated response) (40k) w/Opposition to Lockheed Martin Corp.'s Request for Judicial Notice
Dec 21 2004	Received:   from counsel for (Kinsman) letter/declaration re: case caption.
Aug 31 2005	Case ordered on calendar   10/5/05, 2pm, in Redding, City Hall
Sep 13 2005	Certification of interested entities or persons filed   by counsel for Unocal
Sep 27 2005	Supplemental brief filed   by counsel for (Unocal Corp.)
Sep 30 2005	Received:   from counsel for resp. Request to File Reply to Supplemental Brief and Reply to Supplemental Brief of Unocal Corp.
Oct 3 2005	Filed:   by counsel for resps. Reply to Supplemental Brief
Oct 5 2005	Cause argued and submitted
Oct 13 2005	Received:   from counsel for Unocal Corp. request permission to file response to Plf's supplemental reply brief.
Oct 14 2005	Request Denied   (for permission to file response to suppl. reply brief)
Nov 3 2005	Request for judicial notice denied
Dec 19 2005	Opinion filed: Affirmed in part, reversed in part   and Remanded to the Court of Appeal for proceedings consistent with this opinion. OPINION BY: Moreno, J. -- joined by: George, C.J., Kennard, Baxter, Werdegar, Chin, Cornell, JJ., (assigned by the C.J.)
Jan 3 2006	Rehearing petition filed   Unocal Corp., defendant and apellant Stephen Norris, counsel
Jan 4 2006	Time extended to consider modification or rehearing   to and including March 14, 2006, or the date upon which rehearing is either granted or denied.
Jan 12 2006	Request for extension of time filed   counsel for respondent requests 9- day extension of time to 1-20-2006 to file the answer to petition for rehearing.
Jan 17 2006	Extension of time granted   Respondent's time to serve and file the answer to petition for rehearing is extended to and including January 20, 2006
Jan 23 2006	Answer to rehearing petition filed   by counsel for resp. Ray Kinsman, et al., 40.1(b)
Mar 1 2006	Rehearing denied   Petition for rehearing or modification of opinion DENIED. Modfication of the opinion is granted on the court's own motion.
Mar 1 2006	Opinion modified - no change in judgment
Mar 1 2006	Remittitur issued (criminal case)
Mar 6 2006	Received:   receipt for remittitur from CA 1/3
Mar 13 2006	Note:   record sent to CA/1

Briefs
Dec 31 2003	Opening brief on the merits filed
Apr 5 2004	Answer brief on the merits filed
Jul 1 2004	Reply brief filed (case fully briefed)
Aug 5 2004	Amicus curiae brief filed
Aug 5 2004	Amicus curiae brief filed
Aug 5 2004	Amicus curiae brief filed
Aug 5 2004	Amicus curiae brief filed
Aug 9 2004	Amicus curiae brief filed
Aug 10 2004	Amicus curiae brief filed
Aug 16 2004	Amicus curiae brief filed
Nov 17 2004	Response to amicus curiae brief filed
Nov 23 2004	Response to amicus curiae brief filed

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