49 Cal. 4th 518, 232 P.3d 656, 110 Cal. Rptr. 3d 665


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