Epsten, APC

115 Cal.Rptr.2d 868 (2002)
27 Cal.4th 219
38 P.3d 1094

Brian McKOWN, Plaintiff and Respondent,
v.
WAL-MART STORES, INC., Defendant and Appellant.

No. S091097.
Supreme Court of California.

January 31, 2002.

Snyder & Strozier, Snyder, Strozier, Maho & Tomlinson, Barry Clifford Snyder and Will Tomlinson, Santa Barbara, for Defendant and Appellant.

Fred J. Hiestand, Sacramento, for the Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Appellant.

Garza, Garza & Pacheco, John M. Pacheco; Law Offices of Robert H. Pourvali and Robert H. Pourvali, Calabasas, for Plaintiff and Respondent.

Ian Herzog, Santa Monica; William L. Veen; James C. Sturdevant, San Francisco; Brian C. Unitt, Riverside; Dennis M. Elber, Long Beach; David A. Rosen, Los Angeles; The Arns Law Firm, Morgan C. Smith and Robert S. Arns, San Francisco, for the Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Respondent.

BROWN, J.

This is the third in a series of recent cases in which we have been called upon to consider the reach of our decisions in Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Privette ) and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 74 Cal. Rptr.2d 878, 955 P.2d 504 (Toland). In Privette and Toland, we held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiar risk doctrine set forth in sections 413 and 416 of the Restatement Second of Torts (hereafter Restatement),[1] but is restricted instead 870*870 to a claim against the contractor under the workers’ compensation insurance system. The two prior cases, respectively, raise the question whether, under the rationale of Privette and Toland, an employee of an independent contractor is barred from suing the hirer of the contractor under the tort theories of (1) negligent hiring, and (2) negligent exercise of retained control. In Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 108 Cal. Rptr.2d 617, 25 P.3d 1096 (Camargo), we held that an employee of an independent contractor is barred from suing the hirer of the contractor for the tort of negligent hiring. In Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (Hooker), a companion to this case, we held that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a work site, but that a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries. In this case, we hold that a hirer is liable to an employee of an independent contractor insofar as the hirer’s provision of unsafe equipment affirmatively contributes to the employee’s injury.[2]

FACTUAL AND PROCEDURAL BACKGROUND

Brian McKown was the employee of an independent contractor hired by defendant Wal-Mart Stores, Inc. (Wal-Mart) to install sound systems in its stores, including the store in Chino where this accident occurred. Installation of the sound systems involved running wires and installing speakers in the store ceilings. Wal-Mart requested that the contractor use Wal-Mart’s forklifts whenever possible in performing the work. The request was understood not to be a directive. The forklift that Wal-Mart employees furnished McKown had equipment for overhead work, consisting of a work platform along with a four-foot extension to raise the platform. For safety, the extension was supposed to be chained to the forklift, and the platform chained to the forklift or to the extension. However, only one chain, securing the extension to the forklift, was provided by Wal-Mart. After discussing the advisability of using the forklift without a chain securing the platform to the extension or the forklift, McKown and his colleague decided to do so. While his colleague was driving the forklift and McKown was working on the platform, the platform hit a ceiling pipe, disengaged from the extension, and fell about 12 to 15 feet to the floor with McKown on it.

A jury found that Wal-Mart was negligent in providing unsafe equipment and allocated 55 percent of the responsibility for the accident to McKown’s employer, 23 percent to Wal-Mart, 15 percent to the manufacturer of the equipment, and 7 percent to McKown. The Court of Appeal affirmed the judgment, concluding that “plaintiffs claim that Wal-Mart negligently 871*871 supplied unsafe equipment was viable notwithstanding Privette and Toland.” We granted review, and limited the issue to be briefed and argued to the question whether, under our decisions in Privette and Toland, an employee of an independent contractor is barred from pursuing a lawsuit against the hirer of the independent contractor on the theory the hirer negligently provided unsafe equipment. After review was granted, we issued our decision in Camargo, extending Privette and Toland to the tort of negligent hiring, and we then requested counsel to file supplemental letter briefs exploring the significance of Camargo for the question whether an employee of an independent contractor may bring an action for the tort of negligent provision of unsafe equipment against the hirer of the contractor. The judgment of the Court of Appeal, which affirmed the judgment of the trial court in favor of plaintiff McKown, is affirmed.

DISCUSSION

The line of cases bearing on the question presented here is discussed in the companion to this case, Hooker, supra, 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081, so that discussion need not be repeated at length here. To summarize: In Privette and Toland, we held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiar risk doctrine set forth in sections 413 and 416 of the Restatement. Under section 413, a person who hires an independent contractor to do inherently dangerous work, but who fails to provide in the contract or in some other manner that special precautions be taken to avert the peculiar risks of that work, can be liable if the contractor’s negligent performance of the work causes injury to others. Under section 416, even if the hirer has provided for special precautions in the contract or otherwise, the hirer can nevertheless be liable if the contractor fails to exercise reasonable care to take such precautions and the contractor’s performance of the work causes injury to others. In Toland, we rejected the argument that Privette did not bar recovery for direct liability under section 413, but only for vicarious liability under section 416. “[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, 74 Cal.Rptr.2d 878, 955 P.2d 504.)

In Camargo, supra, 25 Cal.4th 1235, 108 Cal.Rptr.2d 617, 25 P.3d 1096, we held that an employee of a contractor may not sue the hirer of the contractor under the negligent hiring theory set forth in section 411. 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. In Camargo, 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 872*872 failing to use reasonable care in performing the work.’ (Toland, supra, 18 Cal.4th at p. 265, 74 Cal.Rptr.2d 878, 955 P.2d 504.) 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.’ (Toland, supra, 18 Cal.4th at p. 267, 74 Cal.Rptr.2d 878, 955 P.2d 504.)” (Camargo, supra, 25 Cal.4th at p. 1244, 108 Cal.Rptr.2d 617, 25 P.3d 1096.)

In Hooker, we held that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries. Imposing tort liability on a hirer of an independent contractor when the hirer’s conduct has affirmatively contributed to the injuries of the contractor’s employee is consistent with the rationale of our decisions in Privette, Toland and Camargo, because the liability of the hirer in such a case is not in essence vicarious or derivativ e in the sense that it derives from the act or omission of the hired contractor. “To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term.” (Hooker, supra, 27 Cal.4th at p. 212, 115 Cal.Rptr.2d 853, 38 P.3d 1081.)

For the same reason, when a hirer of an independent contractor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of an employee of the contractor, the hirer should be liable to the employee for the consequences of the hirer’s own negligence. “The general supervisory right to control the work so as to insure its satisfactory completion in accordance with the terms of the contract does not make the hirer of the independent contractor liable for the latter’s negligent acts in performing the details of the work. [Citation.] An owner is not liable for injuries resulting from defective appliances unless he has supplied them or has the privilege of selecting them or the materials out of which they are made [citation] or unless he exercises active control over the men employed or the operations of the equipment used by the independent contractor. [Citation.]” (McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788-789, 285 P.2d 902, italics added.) McDonald predates Privette, but as the Court of Appeal here observed, it serves to underline the fact that, “where the hiring party actively contributes to the injury by supplying defective equipment, it is the hiring party’s own negligence that renders it liable, not that of the contractor.” Indeed, the jury in this case clearly distinguished between the liability of the contractor and that of the hirer, allocating 55 percent of the responsibility to the contractor and 23 percent to the hirer, Wal-Mart.

Wal-Mart contends it should not be held liable for provision of the unsafe equipment because it merely requested, and did not insist, the contractor use its forklift. To the contrary: The contractor had several contracts with Wal-Mart for the installation of sound systems in Wal-Mart stores, and Wal-Mart, the world’s largest retailer, was a customer the contractor was presumably loathe to displease. (The chief executive officer of the contractor testified that Wal-Mart had requested that the contractor use Wal-Mart’s forklifts whenever possible, and “[a]s a businessman I found that if a customer has a legitimate request, it’s 873*873 usually best to do what the customer asks.”) Wal-Mart presumably believed the forklift it provided was safe, and plaintiff may well have believed that refusal to use it would have generated ill will. The extra expense of renting a forklift would have been chargeable to Wal-Mart. Moreover, renting a forklift would have entailed delaying the installation project for at least 24 hours for the following reasons: The installation work was to occur at night when the store was closed. Wal-Mart provided the forklift to the contractor’s employees around midnight. At that time of night rental yards, where substitute equipment might have been obtained, were closed. Admittedly, Wal-Mart was not the only one at fault, but then the jury’s verdict reflected that.

With regard to the jury’s verdict, Wal-Mart contends it should not be held liable for its negligence because the jury found the contractor was primarily (55 percent) at fault. We have stated that “`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.'” (Camargo, supra, 25 Cal.4th at p. 1244, 108 Cal.Rptr.2d 617, 25 P.3d 1096, quoting Toland, supra, 18 Cal.4th at p. 267, 74 Cal.Rptr.2d 878, 955 P.2d 504.) However, in this case, as well as in Hooker, the hirer’s affirmative contribution to the employee’s injuries eliminates the unfairness in imposing liability where the contractor is primarily at fault.

Finally, Wal-Mart contends that, in a suit for negligent provision of unsafe equipment, imposition of liability on a hirer for injuries to an employee of an independent contractor would violate the spirit of the workers’ compensation exclusivity rule and give the employee an unwarranted windfall. For the reasons stated in Hooker, these contentions should be rejected. (See Hooker, supra, 27 Cal.4th at pp. 213-214, 115 Cal.Rptr.2d 853, 38 P.3d 1081.)

The judgment of the Court of Appeal is affirmed.

WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, CHIN and MORENO, JJ.

Concurring Opinion by WERDEGAR, J.

I concur in the result. But as in the companion case, Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (Hooker), I disagree with the majority’s rule limiting a hirer’s liability for its own negligence to acts that “affirmatively’ contribute” to the injury of a contractor’s employee (maj. opn., ante, 115 Cal.Rptr.2d at p. 870, 38 P.3d at p. 1095). That limitation is an unwarranted intrusion into the jury’s role in finding facts and allocating fault.

In the present case, Wal-Mart Stores, Inc. (Wal-Mart) argues it should not be liable because the jury found it only 23 percent at fault, while finding the 1227Contractor 55 percent at fault, arguably making the contractor the party “primarily” at fault. Wal-Mart’s position is in obvious conflict with the principles of comparative fault. That one party is deemed less responsible than another, or that the more responsible party is assigned more than 50 percent of the fault, does not exonerate or immunize the less responsible party, though it may reduce that party’s ultimate liability. The majority is therefore correct to reject Wal-Mart’s position, but in substituting its own “affirmatively contribute” test (maj. opn., ante, 115 Cal. Rptr.2d at pp. 872-873, 38 P.3d at p. 1097), the majority makes essentially the same error as Wal-Mart. As I explain in my 874*874 dissent in Hooker, supra, 27 Cal.4th 198, 215, 115 Cal.Rptr.2d 853, 38 P.3d 1081, that one party is deemed to have negligently contributed to an accident only by omission, or that another party contributed to the accident by affirmative act, does not exonerate or immunize the party contributing by omission, though it may well reduce that party’s ultimate liability.

The distinction between act and omission, or activity and passivity, is likely to be important to a jury in allocating fault, but it does not properly play a role in a court’s decision whether a hirer may be liable at all for injuries to a contractor’s employee. (See Hooker, supra, 27 Cal.4th at pp. 216, 217, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (dis. opn. of Werdegar, J.).) Just as the majority in this case accepts the jury’s allocation of fault even though Wal-Mart “requested,” rather than “insisted,” that its own forklift be used (maj. opn, ante, 115 Cal.Rptr.2d at p. 872, 38 P.3d at p. 1097), so should it accept a jury’s allocation of fault (if supported by all the evidence) without imposing a rule of complete immunity for hirers who contribute to an accident by negligent omission rather than affirmative act.

[1] Unless otherwise indicated, all section references are to the Restatement Second of Torts.

[2] In Camargo, we noted we were not reaching this question. “Today we have concluded that the rationale of our decisions in Privette and Toland, which involved tort liability under the peculiar risk doctrine, also applies to the tort of negligent hiring. Review has been granted in cases that present related questions—whether the Privette /Toland rationale should apply as well to the tort of negligent exercise of retained control (Hooker v. Depart of Transportation, review granted Nov. 1, 2000, S091601) or the tort of negligent provision of unsafe equipment (McKown v. Wal-Mart Stores, Inc. (2000) 82 Cal.App.4th 562, 98 Cal.Rptr.2d 214, review granted Oct. 18, 2000, S091097)—and our opinion today should not be read as having prejudged those questions.” (Camargo, supra, 25 Cal.4th at p. 1245, fn. 2, 108 Cal.Rptr.2d 617, 25 P.3d 1096.)

115 Cal.Rptr.2d 853 (2002)
27 Cal.4th 198
38 P.3d 1081

Roseanne HOOKER, Plaintiff and Appellant,
v.
DEPARTMENT OF TRANSPORTATION, Defendant and Respondent.

No. S091601.
Supreme Court of California.

January 31, 2002.Rehearing Denied March 27, 2002.

Paul & Janofsky, Gary M. Paul, John S. Janofsky, Santa Monica; Lewis, Goldberg & Ball, Michael L. Goldberg, McLean, Va, and Michael D. Hutchinson, for Plaintiff and Appellant.

Ian Herzog, Santa Monica; William L. Veen; James C. Sturdevant, San Francisco; Brian C. Unitt, Riverside; Dennis M. Elber, Long Beach; David A. Rosen, Los Angeles; The Arns Law Firm, Morgan C. Smith and Robert S. Arns, San Francisco, for the Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Neumeyer & Boyd, Carol Boyd, Katherine A. Tatikian, Los Angeles; Seifert, Henderson & Farricker and Edward Wm. Farricker, Pasadena, for Defendant and Respondent.

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

John P. Carpenter, Salt Lake City, UT, for Associated General Contractors of California as Amicus Curiae on behalf of Defendant and Respondent.

Fred J. Hiestand, Sacramento, for the Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Respondent.

Radoslovich Law Office, Frank M. Radoslovich and Brad J. Stephens, for Production Framing Systems, Inc., as Amicus Curiae on behalf of Defendant and Respondent.

BROWN, J.

This is the latest in a series of cases in which we have considered whether an employee of an independent contractor may sue the hirer of the contractor under tort theories covered in chapter 15 of the Restatement Second of Torts (hereafter Restatement).[1] In Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Privette) and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504 (Toland), we held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiar risk doctrine set forth in sections 413 and 416. Under section 413, a person who hires an independent contractor to do inherently dangerous work, but who fails to provide in the contract or in some other manner that special precautions be taken to avert the peculiar risks of that work, can be liable if the 855*855 contractor’s negligent performance of the work causes injury to others. Under section 416, even if the hirer has provided for special precautions in the contract or otherwise, the hirer can nevertheless be liable if the contractor fails to exercise reasonable care to take such precautions and the contractor’s performance of the work causes injury to others. Most recently, in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 108 Cal.Rptr.2d 617, 25 P.3d 1096 (Camargo), we held that an employee of a contractor may not sue the hirer of the contractor under the negligent hiring theory set forth in section 411. 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 which will involve a risk of physical harm unless it is skillfully and carefully done, or to perform any duty which the hirer owes to third persons.

The question presented in this case is whether an employee of a contractor may sue the hirer of a contractor for the tort of negligent exercise of retained control set forth in section 414.[2] Section 414 provides: “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 conclude that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries. In this case, although plaintiff raised triable issues of material fact as to whether defendant retained control over safety conditions at the worksite, plaintiff failed to raise triable issues of material fact as to whether defendant actually exercised the retained control so as to affirmatively contribute to the death of plaintiffs husband. Therefore, the trial court properly granted summary judgment in favor of defendant, and the Court of Appeal erred in reversing that judgment.

Factual and Procedural Background

Paul Hooker was a crane operator. He was employed by a general contractor hired by the California Department of Transportation (Caltrans) to construct an 856*856 overpass. The overpass was 25 feet wide and the crane with the outriggers extended was 18 feet wide, so Hooker would retract the outriggers to allow other construction vehicles or Caltrans vehicles to pass. Shortly before the fatal accident, Hooker retracted the outriggers and left the crane. When Hooker returned, he attempted, without first reextending the outriggers, to swing the boom. Because the outriggers were retracted, the weight of the boom caused the crane to tip over. Hooker was thrown to the pavement and killed.

With regard to the question whether Caltrans had negligently exercised the control it had retained over safety at the jobsite, plaintiff relied on the safety chapter of the Caltrans construction manual and the testimony of Caltrans officials responsible for supervising the jobsite. The safety chapter of the Caltrans construction manual provided in pertinent part: “[C]altrans is responsible for obtaining the Contractor’s compliance with all safety laws and regulations…. [¶] The construction safety coordinator must be familiar with highway construction procedures and equipment, construction zone traffic management and be able to recognize and anticipate unsafe conditions created by a Contractor’s operation…. [¶] The Construction Safety Coordinator shall visit contracts [sic] periodically to observe the Contractor’s operation and traffic conditions affected by the construction.” (Italics added.) The manual further gave the Caltrans resident engineer authority to set compliance schedules for the correction of dangerous conditions and to shut down affected operations until the dangerous conditions were corrected.

The senior Caltrans representative on the jobsite, whose responsibilities included safety, had previously observed the crane operators on this project retract their outriggers to let other vehicles pass; he knew they did so “from time to time[ ] or frequently”; and he realized that a crane would be unstable if its boom were extended over its side when its outriggers were retracted. The resident Caltrans engineer on the project had the power to shut the project down because of safety conditions and to remove employees of the contractor for failing to comply with safety regulations. He answered “probably” to the following two questions: (1) “Do you agree that if [the crane operator] had been given priority in the area he was working in and the [overpass] was flagged off, that he wouldn’t have had to retract his outriggers to permit vehicles to pass?” and (2) “And if he hadn’t retracted his outriggers, the crane wouldn’t have become unstable and tipped over, correct?” A Caltrans transportation engineer on the project, whose responsibilities included bringing unsafe conditions to the attention of the resident engineer or the general contractor, conceded that if he had seen a crane operator retract the outriggers to permit vehicles to pass, he would have felt “odd” because the more the outriggers are extended, “the better the stability. That’s simple physics.”

Plaintiff, Hooker’s widow, received workers’ compensation benefits for his death from the contractor’s insurer. Plaintiff also sued Caltrans on the theory Caltrans had negligently exercised control it had retained over safety conditions at the jobsite. Caltrans moved for summary judgment. The motion was based on the ground, among others, that a suit against a hirer of an independent contractor by an employee of the contractor for negligent exercise of retained control was barred by our decisions in Privette and Toland. The trial court granted Caltrans’s summary judgment motion, but the Court of Appeal reversed. We granted review and limited the issue to be briefed and argued to the 857*857 question whether, under our decisions in Privette and Toland, an employee of an independent contractor is barred from pursuing a lawsuit against the hirer of the independent contractor on the theory the hirer negligently exercised control it had retained. After review was granted, we issued our decision in Camargo, extending Privette and Toland to the tort of negligent hiring, and we then requested counsel to file supplemental letter briefs exploring the significance of Camargo for the question whether an employee of an independent contractor may bring an action for the tort of negligent exercise of retained control against the hirer of the contractor.

Discussion

I. The Rationale of Privette, Toland, and Camargo

In Toland, we summarized the peculiar risk doctrine and explained why we had concluded in Privette that under the doctrine a hirer’s liability does not extend to the hired contractor’s employees. “Under the doctrine of peculiar risk, a person who hires an independent contractor to do inherently dangerous work can be held liable for tort damages when the contractor causes injury to others by negligently performing the work. The doctrine serves to ensure that innocent bystanders or neighboring landowners injured by the hired contractor’s negligence will have a source of compensation even if the contractor turns out to be insolvent. As we explained in Privette [, supra, 5 Cal.4th at page] 694 [21 Cal.Rptr.2d 72, 854 P.2d 721], courts created the peculiar risk doctrine in the belief 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.’ [¶] In Privette …, we unanimously held that under the peculiar risk doctrine the hiring person’s liability does not extend to the hired contractor’s employees. Because the Workers’ Compensation Act (Lab.Code, § 3200 et seq.) shields an independent contractor from tort liability to its employees, applying the peculiar risk doctrine to the independent contractor’s employees would illogically and unfairly subject the hiring person, who did nothing to create the risk that caused the injury, to greater liability than that faced by the independent contractor whose negligence caused the employee’s injury. (5 Cal.4th at pp. 698-700 [21 Cal.Rptr.2d 72, 854 P.2d 721].) As we concluded: `[T]he property owner should not have to pay for injuries caused by the contractor’s negligent performance of the work when workers’ compensation statutes already cover those injuries.’ (Id. at p. 699 [21 Cal.Rptr.2d 72, 854 P.2d 721].)” (Toland, supra, 18 Cal.4th at p. 256, 74 Cal.Rptr.2d 878, 955 P.2d 504.)

As we have indicated, the doctrine of peculiar risk, insofar as it was relevant in Privette and Toland, is described in sections 413 and 416. Under section 413, a person who hires an independent contractor to do inherently dangerous work, but who fails to provide in the contract or in some other manner that special precautions be taken to avert the peculiar risks of that work, can be liable if the contractor’s negligent performance of the work causes injury to others. “Because section 413 rests the liability of the hiring person on his or her omission to provide for special precautions in the contract or in some other manner, it is sometimes described as a rule of `direct liability.'” (Toland, supra, 18 Cal.4th at p. 259, 74 Cal.Rptr.2d 878, 955 P.2d 504.) Under section 416, even if the hiring person has provided for special precautions in the contract or otherwise, 858*858 the hiring person can nevertheless be liable if the contractor fails to exercise reasonable care to take such precautions and the contractor’s performance of the work causes injury to others. “Because the hiring person’s liability under section 416 .. . flows from the independent contractor’s negligent failure to take special precautions in performing the inherently dangerous work, as required by `the contract or otherwise,’ the hiring person’s liability is often referred to as `vicarious liability.’ [Citations.]” (Toland, supra, 18 Cal.4th at p. 260, 74 Cal.Rptr .2d 878, 955 P.2d 504, fn. omitted.)

In Toland, a subcontractor’s employee sued the general contractor for on-the-job injuries, asserting that Privette did not bar recovery for direct liability under section 413, but only for vicarious liability under section 416. We rejected the argument, noting that the distinction between the two sorts of liability was not that neat under peculiar risk theory. “[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, 74 Cal.Rptr.2d 878, 955 P.2d 504.) Accordingly, we held that, “contrary to plaintiff Toland’s assertion, our decision in Privette, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, bars employees of a hired contractor who are injured by the contractor’s negligence 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, 74 Cal.Rptr.2d 878, 955 P.2d 504.)

In Camargo, 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 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.’ (Toland, supra, 18 Cal.4th at p. 265, 74 Cal.Rptr.2d 878, 955 P.2d 504.) 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.’ (Toland, supra, 18 Cal.4th at p. 267, 74 Cal.Rptr.2d 878, 955 P.2d 504.)” (Camargo, 859*859 supra, 25 Cal.4th at p. 1244, 108 Cal.Rptr.2d 617, 25 P.3d 1096.)

II. Applying the Rationale of Privette, Toland and Camargo to the Doctrine of Negligent Exercise of Retained Control

Again, section 414 provides: “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.” (Italics added.)

Defendant Caltrans contends that employees of a contractor are not others for the purposes of section 414. There are no illustrations to section 414, and the comments to section 414 cast no light on this question. (See § 414, corns, a-c, pp. 387-388.) However, section 414—like sections 413 and 416, which set out the peculiar risk doctrine at issue in Privette and Toland, and section 411, which sets out the negligent hiring doctrine at issue in Camargo— appears in chapter 15 of the Restatement. And as we noted in Toland, and reiterated in Camargo, “a tentative draft to the Restatement ‘stated that “when the Sections in this Chapter speak of liability to `another,’ or `others,’ or to `third persons,’ it is to be understood that the employees of the contractor, as well as those of the defendant himself, are not included.” (Rest.2d Torts (Tent. Draft No. 7, Apr. 16, 1962) ch. 15, special note, p. 18, italics added.)’ (Toland, supra, 18 Cal.4th at pp. 266-267, 74 Cal.Rptr.2d 878, 955 P.2d 504.)” (Camargo, supra, 25 Cal.4th at p. 1241, 108 Cal. Rptr.2d 617, 25 P.3d 1096.)

In Camargo, we noted that “[t]he overwhelming majority of the courts of other jurisdictions that have addressed the question have concluded that an employee of a contractor is not a third person for the purposes of section 411. [Citations.]” (Camargo, supra, 25 Cal.4th at p. 1241, 108 Cal.Rptr.2d 617, 25 P.3d 1096.) Unfortunately, the courts of our sister states have not developed a similar consensus, nor have they spoken with anything like the same clarity, with regard to the question whether employees of contractors are others for the purposes of section 414.

The courts of a number of states have assumed, without directly addressing the question, that an employee of a contractor may sue the hirer of the contractor for negligent exercise of retained control, and these courts have focused, instead, on whether a triable issue was presented as to retention of control or on whether a judgment in favor of the plaintiff was supported by sufficient evidence as to retention of control. (See Alabama Power Co. v. Beam (Ala.1985) 472 So.2d 619, 622-625; Elkins v. Arkla, Inc. (1993) 312 Ark. 280, 849 S.W.2d 489, 490-492; Corsetti v. Stone Co. (1985) 396 Mass. 1, 483 N.E.2d 793, 799; Clausen v. Aberdeen Grain Inspection (S.D.1999) 594 N.W.2d 718, 721-723; Hittel v. WOTCO, Inc. (Wyo.2000) 996 P.2d 673, 676-678.)

The courts of states that have directly addressed it are evenly split on the question whether an employee of a contractor may sue the hirer of the contractor for negligent exercise of retained control.

Answering the question in the affirmative, the Supreme Court of North Dakota has stated the rule broadly. “Employees of an independent contractor fall within the protection of Section 414, and an employer of an independent contractor owes a duty to the independent contractor’s employees to exercise the retained control with reasonable care.” (Fleck v. ANG Coal Gasification Co. (N.D.1994) 522 N.W.2d 445, 447.)

860*860 Taking a more nuanced position, the Supreme Court of Utah has held that a hirer is not liable to an employee of an independent contractor for negligent exercise of retained control, unless the hirer’s conduct meets the active participation standard. (Thompson v. Jess (Utah 1999) 979 P.2d 322, 326-328 (Thompson).) “Under the ‘active participation’ standard, a principal employer is subject to liability for injuries arising out of its independent contractor’s work if the employer is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.]” (Id. at p. 327.) Therefore, retained control is somewhat of a misnomer for the doctrine as the Utah Supreme Court applies it. “Under the standards announced herein, a duty of care is imposed if the principal employer asserts affirmative control over or actually participates actively in the manner of performing the contracted work. `Retained,’ to the extent the word implies passivity or nonaction, is inapt.” (Id at p. 328, fn. 3.)

Like the North Dakota Supreme Court in Fleck, supra, 522 N.W.2d 445, the Supreme Court of New Mexico has voiced a broad theory of liability. “If [an employer of an independent contractor] has the right to, and does, retain control of the work performed by the independent contractor, he owes the duty of care to the independent contractor’s employee which, if breached, can result in liability to the employee. [Citation.]” (Valdez v. Cillessen & Son, Inc. (1987) 105 N.M. 575, 734 P.2d 1258, 1262.) However, the New Mexico Supreme Court announced this broad rule in a case in which the hirer’s conduct would have more than satisfied the active participation standard announced by the Utah Supreme Court in Thompson, supra, 979 P.2d 322. An employee of a lathing and plastering subcontractor was injured in the collapse of scaffolding. A grant of summary judgment in favor of the hirer was reversed by the New Mexico Supreme Court because there was evidence in the record that the hirer had issued detailed directions to the subcontractor concerning virtually every aspect of the job, including the manner in which the scaffolding was to be erected, and that the hirer, through its superintendent at the jobsite, had “fired the employees of subcontractors, instructed employees on how, when, and where to do their jobs, and assigned employees to tasks other than those which they had been hired to do.” (Valdez, at pp. 1262-1263.)

On the other hand, the courts of other states have concluded that an employee of an independent contractor is barred from suing the hirer of the contractor for negligent exercise of retained control. The Court of Appeals of Kentucky concluded that “[n]othing in the discussions of Sections 413, 414, 416, and 427 of the Restatement, Torts 2d, indicates that an employee of an independent contractor is within the class of `others’ protected by those sections.” (King v. Shelby Rural Electric Cooperative Corp. (Ky.1974) 502 S.W.2d 659, 662, italics added.) In Parker v. Neighborhood Theatres (Ct.Spec.App.1988) 76 Md.App. 590, 547 A.2d 1080, the Court of Special Appeals of Maryland, after concluding the plaintiff had failed to establish retention of control, added that the plaintiff had also failed to provide the court “with any authority that an employee of an independent contractor injured by the negligence of his own master is a person intended to be included among the class of persons to whom the owner owes a nondelegable duty of reasonable care…. No 861*861 matter how appellant phrases it, what he is unsuccessfully attempting is an end run on the Worker’s Compensation Law.” (Id. at p. 1085.) In Sutherland v. Barton (Minn. 1997) 570 N.W.2d 1, the Supreme Court of Minnesota found that no triable issue had been presented as to retained control, and so it reinstated the summary judgment in favor of the hirer, which had been reversed by the intermediate appellate court. In the course of reaching that conclusion, the court noted that “when applying the Restatement [Second of Torts] sections that impose liability on companies hiring independent contractors, we have held that ‘others’ does not include the employees of an independent contractor. [Citation.] This limitation also applies to § 414.” (Id. at p. 5, fn. omitted.)

Recently, the Courts of Appeal of California that have addressed the question have agreed that a hirer may, under certain circumstances, be liable to an employee of a contractor under a retained control theory. However, they have disagreed as to whether mere retention of control is sufficient, or whether something more, something like the Utah Supreme Court’s concept of active participation, must be shown. (Compare Grahn v. Tosco Corp. (1997) 58 Cal.App.4th 1373, 68 Cal.Rptr.2d 806 (Grahn) with Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 103 Cal.Rptr.2d 594 (Kinney).) Under Grahn, “the hirer may be held liable to the independent contractor’s employee where the hirer retains sufficient control over the work of an independent contractor to be able to prevent or eliminate through the exercise of reasonable care the dangerous condition causing injury to the independent contractor’s employee. [Citations.]” (Grahn, at p. 1393, 68 Cal.Rptr.2d 806, italics added.) Under Kinney, on the other hand, mere retention of the ability to control safety conditions is not enough. “[A] general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct. The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff. Insofar as section 414 might permit the imposition of liability on a general contractor for mere failure to intervene in a subcontractor’s working methods or procedures, without evidence that the general contractor affirmatively contributed to the employment of those methods or procedures, that section is inapplicable to claims by subcontractors’ employees against the general contractor.” (Kinney, at p. 39, 103 Cal.Rptr.2d 594.)

The Kinney court, we conclude, correctly applied the principles of our decisions in Privette and Toland, whereas the Grahn court made much the same mistake in applying Privette to section 414 as it did in applying that case to section 411 (see Camargo, supra, 25 Cal.4th at pp. 1242-1245, 108 Cal.Rptr.2d 617, 25 P.3d 1096, disapproving Grahn, supra, 58 Cal.App.4th 1373, 68 Cal.Rptr.2d 806, insofar as it was inconsistent with that opinion).

In Grahn, an employee of an independent contractor sued the hirer of the contractor under three theories of negligence, including negligent hiring (§ 411) and negligent exercise of retained control (§ 414). (Grahn, supra, 58 Cal.App.4th at pp. 1389-1396, 68 Cal.Rptr.2d 806.) Grahn was decided after Privette but before Toland, and without the benefit of the gloss provided by Toland the Court of Appeal in Grahn misunderstood Privette to have been bottomed on the ground that the hirer in a peculiar risk case is not directly negligent. “In Privette, the court had before it only the issue of whether a peculiar risk theory could be used to hold a nonnegligent hirer 862*862 liable under vicarious liability for the negligence of the independent contractor.” (Grata, at p. 1384, 68 Cal.Rptr.2d 806.) To the contrary, as we explained in Toland and reiterated in Camargo, “the rationale of our decision in Privette extends to cases where the hirer is directly negligent in the sense of having failed to take precautions against the peculiar risks involved in the work entrusted to the contractor. To repeat: In Toland, we rejected the plaintiffs argument that Privette did not bar recovery for direct liability under section 413, but only for vicarious liability under section 416.” (Camargo, supra, 25 Cal.4th at pp. 1243-1244, 108 Cal.Rptr.2d 617, 25 P.3d 1096.)

The Grahn court repeated its mistake in applying Privette to the doctrine of retained control. “Having retained control of the independent contractor’s work, the hirer has a direct and nonimputed obligation to see that reasonable precautions are taken to eliminate or reduce the risk of harm to the employees of its independent contractors.” (Grahn, supra, 58 Cal. App.4th at p. 1394, 68 Cal.Rptr.2d 806, italics added.) Again, the conclusion that a hirer’s liability can be characterized as direct does not end the inquiry into whether the hirer should be held liable for injuries to a contractor’s employees, as we explained in Camargo. “Admittedly, as the Grahn court observed, under section 411, the hirer is, in a sense, being taxed with his own negligence under a theory of direct liability. (Grahn, at p. 1385, 68 Cal.Rptr.2d 806.) However, the 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.’ (Toland, supra, 18 Cal.4th at p. 265, 74 Cal.Rptr.2d 878, 955 P.2d 504.) 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.’ (Toland, supra, 18 Cal.4th at p. 267, 74 Cal.Rptr.2d 878, 955 P.2d 504.)” (Camargo, supra, 25 Cal.4th at p. 1244, 108 Cal.Rptr.2d 617, 25 P.3d 1096.)

Similarly, because the liability of the contractor, the person primarily responsible for the worker’s on-the-job injuries, is limited to providing workers’ compensation coverage, 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, as the Kinney court recognized, 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. “We are persuaded that the holdings of Privette and Toland should also apply to employees’ claims under section 414 at least where, as here, (1) the sole factual basis for the claim is that the hirer failed to exercise a general supervisory power to require the contractor to correct an unsafe procedure or condition of the contractor’s own making, and (2) there is no evidence that the hirer’s conduct contributed in any way to the contractor’s negligent performance by, e.g., inducing injurious action or inaction through actual direction, reliance on the hirer, or otherwise. The fairness rationale at the core of Privette and Toland applies 863*863 equally to preclude imposition of liability on a hirer for mere failure to exercise a general supervisory power to prevent the creation or continuation of a hazardous practice, where such liability would exceed that imposed on the injured plaintiffs immediate employer, who created the hazard.” (Kinney, supra, 87 Cal.App.4th at p. 36, 103 Cal.Rptr .2d 594.)

In Kinney, an employee of a subcontractor (PBE) was injured in a fall from scaffolding, and he sued the general contractor, CSB Construction, Inc. (CSB), for negligent exercise of retained control. Kinney is strikingly similar to the present case in that, although the hirer in theory retained a high degree of control over safety conditions at the jobsite, there was no indication the hirer contributed to the accident by an affirmative exercise of that control. “The parties agreed for purposes of the summary judgment motion that during the performance of the subcontract, CSB `had the right to order any safety means or measures that it felt were appropriate’ on the jobsite…. [According to the testimony of CSB’s site superintendent], [i]f he saw an unsafe condition, he ‘had a right to do whatever [he thought was] appropriate.’ … Specifically, `[i]f a subcontractor was working without adequate fall protection and [he] felt that fall protection was required, [he] would … tell them that they needed fall protection’ and `would … stop the work until they had good fall protection.’ … However, he did not recall an instance in which he actually directed PBE or any of the other subcontractors on the job to alleviate an unsafe condition.” (Kinney, supra, 87 Cal. App.4th at p. 31, 103 Cal.Rptr.2d 594.)

The question, as the Kinney court framed it, was “whether a general contractor who claims the power to control all safety procedures on the worksite may be liable to the injured employee of a subcontractor for failing to direct the subcontractor to take safety precautions where there is no evidence that any conduct by the general contractor contributed affirmatively to the injuries.” (Kinney, supra, 87 Cal.App.4th at p. 30, 103 Cal.Rptr.2d 594.) Kinney answered that question in the negative. “We hold that in light of recent California Supreme Court holdings limiting the liability of general contractors for injuries to employees of subcontractors, liability cannot be imposed on the general contractor based upon a mere failure to require the subcontractor to take safety precautions, where the general contractor’s failure is not shown to have affirmatively contributed to the creation or persistence of the hazard causing the plaintiffs injuries. Accordingly, we affirm the judgment for defendant.” (Ibid.)

The Kinney court correctly applied our prior decisions. Imposing tort liability on a hirer of an independent contractor when the hirer’s conduct has affirmatively contributed[3] to the injuries of the contractor’s employee is consistent with the rationale of our decisions in Privette, Toland and Camargo because the liability of the hirer in such a case is not “`in essence “vicarious” or “derivative” in the sense that it derives from the “act or omission” of the hired contractor.'” (Camargo, supra, 25 Cal.4th at p. 1244, 108 Cal.Rptr.2d 617, 25 P.3d 1096, quoting Toland, supra, 18 Cal.4th at p. 265, 74 Cal.Rptr.2d 878, 955 P.2d 504.) To the contrary, the liability 864*864 of the hirer in such a case is direct in a much stronger sense of that term.

Unlike the rule announced in Grahn, the rule announced in Kinney is not susceptible to the objection raised by Caltrans that a defendant will never be able to prevail on a motion for summary judgment in an action for negligent exercise of retained control. To the contrary, where, as here, the plaintiff fails to present a triable issue as to whether the defendant’s exercise of retained control affirmatively contributed to the employee’s injuries, summary judgment is appropriate.

Caltrans also objects that two policy considerations that we have relied upon in barring employees of independent contractors from bringing tort actions against the hirers of the contractors under the peculiar risk doctrine or the negligent hiring doctrine also apply to actions brought under the retained control doctrine.

Caltrans finds support in the following passage from Camargo: “Two of the related policy considerations we relied upon in Privette also support our conclusion here that an employee of an independent contractor should not be permitted to bring a negligent hiring action against the hirer of the contractor: (1) The rule of workers’ compensation exclusivity, which shields an independent contractor who pays workers’ compensation insurance premiums from further liability to its employees, should equally apply to the person hiring the contractor because the hirer has indirectly paid the cost of such coverage inasmuch as it was presumably calculated into the contract price (Privette, supra, 5 Cal.4th at p. 699, 21 Cal.Rptr.2d 72, 854 P.2d 721); and (2) permitting such a recovery would give employees of independent contractors an unwarranted windfall, something that is denied other workers—the right to recover tort damages for industrial injuries caused by their employer’s failure to provide a safe working environment (id. at pp. 699-700, 21 Cal.Rptr.2d 72, 854 P.2d 721).” (Camargo, supra, 25 Cal.4th at pp. 1244 1245, 108 Cal.Rptr.2d 617, 25 P.3d 1096, fn. omitted.)

Caltrans’s reliance is misplaced. While it is true that the cost of workers’ compensation insurance coverage is as likely to have been calculated into the contract price paid by the hirer in a retained control case as it is in peculiar risk or negligent hiring cases, the contract price could not have reflected the cost of injuries that are attributable to the hirer’s affirmative conduct. The contractor has no way of calculating an increase in the costs of coverage that are attributable to the conduct of third parties, which is why the employee, despite the existence of the workers’ compensation system, is not barred from suing a third party who proximately causes the employee’s injury. (See Lab.Code, § 3852.)

Moreover, a close reading of our opinion in Privette reveals another ground for distinguishing between peculiar risk and negligent hiring cases, on the one hand, and negligent exercise of retained control cases, on the other, in this regard. “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”` (Green v. Soule (1904) 145 Cal. 96, 99, 78 P. 337; accord, McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788, 285 P.2d 902.)[4] The reasoning was that the work 865*865 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. [Citations.]” (Privette, supra, 5 Cal.4th at p. 693, 21 Cal.Rptr.2d 72, 854 P.2d 721, italics added.) 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 liability on the hirer.

Similarly, if an employee of an independent contractor can show that the hirer of the contractor affirmatively contributed to the employee’s injuries, then permitting the employee to sue the hirer for negligent exercise of retained control cannot be said to give the employee an unwarranted windfall. The tort liability of the hirer is warranted by the hirer’s own affirmative conduct. The rule of workers’ compensation exclusivity “does not preclude the employee from suing anyone else whose conduct was a proximate cause of the injury” (Privette, supra, 5 Cal.4th at p. 697, 21 Cal.Rptr.2d 72, 854 P.2d 721), and when affirmative conduct by the hirer of a con tractor is a proximate cause contributing to the injuries of an employee of a contractor, the employee should not be precluded from suing the hirer.

Grahn v. Tosco Corp., supra, 58 Cal. App.4th 1373, 68 Cal.Rptr.2d 806, is disapproved insofar as it is inconsistent with this opinion.

III. By Merely Permitting Traffic to Use the Overpass, Caltrans Did Not Affirmatively Contribute to Mr. Hooker’s Death

In oral argument before this court, a question was raised as to whether Caltrans required, in the sense of ordered, the crane operator to retract his outriggers to permit vehicles to pass. The record does not reflect that any such order was issued by Caltrans. Indeed, in response to a question from the bench, counsel for the plaintiff admitted: “The honest answer to your question … is [Caltrans] permitted it to happen. They permitted this traffic to happen on the overpass. They didn’t direct it to happen.”

Confusion in this regard was generated by an earlier statement made by plaintiffs counsel. In arguing that Caltrans’s exercise of retained control affirmatively contributed to Mr. Hooker’s death, plaintiffs counsel stated, “I think it’s an affirmative act when Caltrans’s own engineer specifically 866*866 comes up and requires the operator to retract the outriggers.” He later explained what he meant by this: “There was evidence in the record that the Caltrans Senior Engineer himself used the overpass as a shortcut to traverse the construction and had to wait until the operator retracted the outriggers.” This narrower statement is supported by the record.

Perhaps the clearest way to put it is this: Caltrans permitted construction vehicles, as well as vehicles owned and operated by Caltrans, to use the overpass while the crane was being operated, and because the overpass was narrow, the crane operator was required to retract the outriggers in order to let the traffic pass. That is what plaintiff asserted below: “Given the narrow width of the portion of the [high occupancy vehicle] lane where he was working, Mr. Hooker was regularly required to retract his extended outriggers to permit construction vehicles, including vehicles owned and operated by Defendant State of California, to pass.”

We are not persuaded that Caltrans, by permitting traffic to use the overpass while the crane was being operated, affirmatively contributed to Mr. Hooker’s death. Interestingly, when pressed for a standard, plaintiffs counsel referred to a passage in the Thompson opinion of the Utah Supreme Court quoted above: “Under the `active participation’ standard, a principal employer is subject to liability for injuries arising out of its independent contractor’s work if the employer is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.]” (Thompson, supra, 979 P.2d at p. 327, italics added.) To repeat, Caltrans did not direct the crane operator to retract his outriggers to permit traffic to pass.

Accordingly, under the standard we announce today, summary judgment was appropriate here. Plaintiff raised triable issues of material fact as to whether defendant retained control over safety conditions at the worksite. However, plaintiff failed to raise triable issues of material fact as to whether defendant actually exercised the retained control so as to affirmatively contribute to the death of plaintiffs husband. While the evidence suggests that the crane tipped over because the crane operator swung the boom while the outriggers were retracted, and that the crane operator had a practice of retracting the outriggers to permit construction traffic to pass the crane on the overpass, there was no evidence Caltrans’s exercise of retained control over safety conditions at the worksite affirmatively contributed to the adoption of that practice by the crane operator. There was, at most, evidence that Caltrans’s safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it.

Disposition

The judgment of the Court of Appeal is reversed and the matter remanded for further proceedings consistent with this opinion.

WE CONCUR: GEORGE, C.J., KENNARD, J., BAXTER, J., CHIN, J. and MORENO, J.

Dissenting Opinion by WERDEGAR, J.

I respectfully dissent. While I agree with the majority that a party hiring an 867*867 independent contractor may be liable in tort to employees of the contractor for negligent exercise of control the hirer has retained over any part of the work, I disagree that such liability may exist only when the hirer’s exercise of control “affirmatively contributed to the injury of the contractor’s employee” (maj. opn., ante, 115 Cal.Rptr.2d at p. 862, 38 P.3d at p. 1089, italics in original). The majority’s analysis, and the result it reaches in this case, usurp the factfinding and fault allocation functions assigned to the jury under our comparative fault system.

The evidence produced on summary judgment showed that California Department of Transportation (Caltrans) employees had permitted construction traffic on the overpass where plaintiffs decedent was working, and had driven Caltrans’s own vehicles on the overpass. The Caltrans construction manual required the construction safety coordinator to know proper “construction zone traffic management,” implying that Caltrans bore responsibility for exercising such management. A reasonable trier of fact could infer that Caltrans retained control over construction zone traffic management and that, in exercising this retained control, Caltrans used, and permitted other vehicles to use, the overpass. The resulting traffic frequently required the decedent to retract the outriggers of his crane, a practice that led proximately to his fatal accident. Evidence showed as well that Caltrans representatives had observed the outriggers being repeatedly retracted, knew the crane was unstable in that state, and knew that if they were to “flag off the overpass the crane operator would not have to retract the outriggers. This complex of evidence raises at least a triable issue of fact (Code Civ. Proc, § 437c) as to whether Caltrans negligently exercised its retained control over construction zone traffic, contributing to the decedent’s death.

To be sure, the evidence suggests that Caltrans did not bear sole fault in the accident. Caltrans apparently did not order the decedent to retract the outriggers for passing traffic; nor, apparently, did Caltrans direct the decedent to attempt operating the crane before reextending the outriggers. It may be that a jury, hearing all the evidence, would find the decedent largely at fault for his own death and assign to Caltrans only a small share of the fault, based on its having permitted and contributed to the overpass traffic. In that case, Caltrans’s liability would be reduced; the comparative fault system operates to reduce the liability of a negligent hirer in the same manner it reduces the liability of other third parties for employee injuries. (See Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 280, 74 Cal.Rptr.2d 878, 955 P.2d 504 (cone. & dis. opn. of Werdegar, J.).) No special judicial test of negligence is required in order to achieve a fair allocation of fault.

The majority’s “affirmatively contribute” test of negligence liability reflects the notion that a person who actually performs a dangerous act, or directs its performance, is likely to be more at fault for the resulting accident than a person who merely fails to correct the conditions creating the danger. One might expect that generalization to be reflected, as well, in a jury verdict on liability: to the extent the hirer’s fault is seen as resting solely on inaction, the jury is likely to assign the hirer a low share of fault in comparison to those who contributed to the injury by their actual participation in the operation. But the determination of comparative fault in this manner, like any negligence determination, rests on the specific facts of the case: to whom was the danger apparent; who had the ability to alleviate the danger, 868*868 and by what means and at what costs? From the distinctions between activity and passivity, act and omission, which a jury might properly use to measure and compare fault, the majority fashions a purported bright-line rule for courts to apply.[1] Its effort is both unnecessary and inimical to the jury system.

I do not suggest every retained-control claim must go to a jury. The mere fact that a contract gives the hiring party general control over the project and the authority to stop work should not create liability if, in practice, the hirer’s supervision and control did not actually extend to any part of the operation contributing to the hazard. As the Restatement Second of Torts cautions: “It is not enough that [the hirer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations…. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” (Rest.2d Torts, § 414, com. c, p. 388; see also Hobbs v. Mobil Oil Corporation (Alaska 1968) 445 P.2d 933, 936 [hirer not liable to a contractor’s employee if “under the contract and in actual practice” the hirer’s control does not affect the contractor’s “methods of work” or the “operative detail” of the work].)

The present case, however, is not merely one of contractual or formal control. Plaintiff has produced evidence from which one can infer that Caltrans’s actual exercise of control over traffic on the site affected the manner in which the crane operations were conducted; the contractor, consequently, was not “entirely free to do the work in his own way.” (Rest.2d Torts, § 414, com. c, p. 388.) Whether after full discovery and trial a jury would agree with plaintiff that Caltrans’s management of traffic at the site was partly responsible for the crane’s unsafe operation and the resulting accident is not at issue at this point in the proceedings. To properly obtain summary judgment, defendant must show that plaintiff “has not established, and cannot reasonably expect to establish, a prima facie case” of negligent exercise of retained control. (Saelzler v. Advanced Group WO (2001) 25 Cal.4th 763, 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143, italics added.) Defendant has not made that showing.

I would affirm the judgment of the Court of Appeal.

[1] Unless otherwise indicated, all section references are to the Restatement Second of Torts.

[2] In both Toland and Camargo, we noted we were not reaching this question. “Our grant of review did not extend to, and therefore we do not decide, a second issue raised by Toland: whether Privette, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721, would preclude an employee of an independent contractor from seeking tort recovery for workplace injuries under the theory of section 414 of the Restatement Second of Torts that the general contractor or landowner `retained control’ over the operative details of the hired work. As the Court of Appeal unanimously concluded, the facts Toland offered in opposing summary judgment were insufficient to raise a triable issue on that question.” (Toland, supra, 18 Cal.4th at p. 264, fn. 2, 74 Cal.Rptr.2d 878, 955 P.2d 504.) “Today we have concluded that the rationale of our decisions in Privette and Toland, which involved tort liability under the peculiar risk doctrine, also applies to the tort of negligent hiring. Review has been granted in cases that present related questions—whether the Privette/Toland rationale should apply as well to the tort of negligent exercise of retained control (Hooker v. Department of Transportation, review granted Nov. 1, 2000, S091601) or the tort of negligent provision of unsafe equipment (McKown v. Wal-Mart Stores, Inc. (2000) 82 Cal.App.4th 562, 98 Cal.Rptr.2d 214, review granted Oct. 18, 2000, S091097)—and our opinion today should not be read as having prejudged those questions.” (Camargo, supra, 25 Cal.4th at p. 1245, fn. 2, 108 Cal.Rptr.2d 617, 25 P.3d 1096.)

[3] Such 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.

[4] In McDonald v. Shell Oil Co., supra, 44 Cal.2d 785, 285 P.2d 902, we did not have occasion to grapple with the question presented by this case—whether an employee of a contractor may sue the hirer of a contractor for the tort of negligent exercise of retained control. McDonald did involve a negligence suit by an employee of a contractor against the hirer of the contractor. And our discussion did begin with a recitation of the following general principles: “The general supervisory right to control the work so as to insure its satisfactory completion in accordance with the terms of the contract does not make the hirer of the independent contractor liable for the latter’s negligent acts in performing the details of the work. [Citation.] An owner is not liable for injuries resulting from defective appliances unless he has supplied them or has the privilege of selecting them or the materials out of which they are made [citation] or unless he exercises active control over the men employed or the operations of the equipment used by the independent contractor. [Citation.]” (Id. at pp. 788-789, 285 P.2d 902, italics added.) However, in McDonald we found the hirer of the contractor had retained no more than the general supervisory right to control the work so as to insure its satisfactory completion in accordance with the terms of the contract. (See id. at p. 790, 285 P.2d 902.) Moreover, of course, McDonald long predated Privette.

[1] The line drawn is actually rather fuzzy in light of the majority’s suggestion that some “omissions” may be deemed “affirmative” contributions to an injury. (Maj. opn., ante, 115 Cal.Rptr.2d at p. 863, fn. 3, 38 P.3d at p. 1089, fn. 3.) The majority further fails to explain why a hirer’s “promise[ ]” (ibid.) to exercise control allows for possible liability while the contractual retention of control is held insufficient as a matter of law, even, as in this case, where the hirer’s retention of control could reasonably have led the contractor and its employees to expect that the hirer would in fact exercise its control when necessary.

FRANKLIN PRIVETTE, Petitioner,
v.
THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; JESUS CONTRERAS, Real Party in Interest.

691*691 COUNSEL

Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Mark G. Bonino and Justice C. McPherson for Petitioner.

Horvitz & Levy, David M. Axelrad, Christine T. Hoeffner, Sedgwick, Detert, Moran & Arnold and Frederick D. Baker as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Seltzer & Cody, Christopher T. Cody and Richard Seltzer for Real Party in Interest.

OPINION

KENNARD, J.

(1a) Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others. By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caused by inherently dangerous work will be compensated, that the person for whose benefit the contracted work is done bears responsibility for any risks of injury to others, and that adequate safeguards are taken to prevent such injuries. Courts differ, however, on the propriety of extending the doctrine to the contractor’s own employees. A minority of jurisdictions, including California, have permitted such employees to seek recovery from the person who hired the contractor. But the decisions of this court by which the minority rule has become established in California have never addressed the potential conflict between the peculiar risk doctrine, as applied in favor of the contractor’s employees, and the system of workers’ compensation. Today, this court for the first time directly confronts this issue.

692*692 When an employee of the independent contractor hired to do dangerous work suffers a work-related injury, the employee is entitled to recovery under the state’s workers’ compensation system. That statutory scheme, which affords compensation regardless of fault, advances the same policies that underlie the doctrine of peculiar risk. Thus, when the contractor’s failure to provide safe working conditions results in injury to the contractor’s employee, additional recovery from the person who hired the contractor — a nonnegligent party — advances no societal interest that is not already served by the workers’ compensation system. Accordingly, we join the majority of jurisdictions in precluding such recovery under the doctrine of peculiar risk.

I

Franklin Privette hired Jim Krause Roofing, Inc. (hereafter Krause) to install a new tar and gravel roof on his duplex. Using a kettle and pumping device parked in a driveway next to the duplex, the roofing crew transported hot tar to the roof. When the gravel truck arrived, the crew moved the kettle and pumping device to make room for the truck.

After the gravel was deposited on the roof, crew members realized they needed 50 more gallons of tar to complete the job. The foreman then directed employee Jesus Contreras to carry 10 five-gallon buckets of hot tar up a ladder to the roof. While performing this task, Contreras fell off the ladder and was burned by hot tar.

Contreras sought workers’ compensation benefits for his injuries. He also sued Privette, the owner of the duplex, alleging two theories of recovery: that Privette had been negligent in selecting Krause as a roofer; and that, because of the inherent danger of working with hot tar, Privette should, under the doctrine of peculiar risk, be liable for injuries to Contreras that resulted from Krause’s negligence.

In a pretrial motion for summary judgment (Code Civ. Proc., § 437c), Privette sought termination of Contreras’s action. Among the arguments Privette made was that the availability of workers’ compensation to Contreras for injuries resulting from his employer’s conduct should bar him from any recovery from Privette under the doctrine of peculiar risk.^[1] In support of his motion, Privette presented these undisputed facts: Privette, a school teacher, owned some rental properties, including the duplex where roofing employee Contreras was injured. Privette had hired the Krause roofing firm 693*693 to reroof his duplex only after checking references and determining that Krause was licensed and carried workers’ compensation insurance for its employees. Privette was not present when Contreras was injured during the roofing process, nor did he participate in the foreman’s decision to have Contreras carry buckets of hot tar up a ladder to the roof.

The trial court denied Privette’s motion for summary judgment. Following Privette’s unsuccessful attempt to obtain relief from the Court of Appeal, we granted his petition for review and issued an alternative writ to determine the applicability of the peculiar risk doctrine in this case.

II

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. (Prosser & Keeton on Torts (5th ed. 1984) § 71, p. 509 [hereafter Prosser]; see S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350 [256 Cal. Rptr. 543, 769 P.2d 399].) 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.'” (Greene v. Soule (1904) 145 Cal. 96, 99 [78 P. 337]; accord, McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788 [285 P.2d 902].) 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. (Fleming, An Introduction to the Law of Torts (1967) pp. 172-173 [hereafter Fleming]; Prosser, supra, § 71, at p. 509; Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 250 [66 Cal. Rptr. 20, 437 P.2d 508].)

Over time, the courts have, for policy reasons, created so many exceptions to this general rule of nonliability that “`”the rule is now primarily important as a preamble to the catalog of its exceptions.”‘” (Van Arsdale v. Hollinger, supra, 68 Cal.2d at p. 252, quoting Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co. (1937) 201 Minn. 500 [277 N.W. 226]; Rest.2d Torts, §§ 410-429 and § 409, com. b, at p. 370 [describing the nonliability rule as “`general’ only in the sense that it is applied where no good reason is found for departing from it”].) One of these exceptions pertains to contracted work that poses some inherent risk of injury to others. This exception is commonly referred to as the doctrine of peculiar risk.

The origins of this doctrine can be traced to roughly the latter half of the nineteenth century, when a growing recognition developed in the courts that 694*694 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. As a leading English decision from 1876 put it: “[A] man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise… cannot relieve himself of his responsibility by employing some one else….” (Bower v. Peate (1876) 1 Q.B.D. 321, 326.) In that case, the 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. (Id. at pp. 323, 324-327.)

Interestingly, 14 years earlier, in 1862, the United States Supreme Court had articulated similar reasoning in imposing liability on a landowner. (Chicago v. Robbins (1862) 67 U.S. (2 Black) 418, 426-427 [17 L.Ed. 298, 303-304].) In that case, a landowner had a contractor construct a building on his land. In the course of the work, the contractor excavated the adjoining city sidewalk and left the hole uncovered. A passerby fell into the hole, and sought recovery from the landowner for the resulting injuries. In holding the owner liable for the contractor’s negligence, the high court reasoned that the injury had been caused “by the very nuisance which [the landowner] ha[d] created for his own benefit.” (Id. at p. 427.)

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. (See Note, Liability to Employees of Independent Contractors Engaged in Inherently Dangerous Work: A Workable Workers’ Compensation Proposal (1980) 48 Fordham L.Rev. 1165, 1176-1178 [hereafter A Workable Proposal]; see also Comment, The Peculiar Risk Doctrine: A Criticism of Its Application in California (1988) 22 U.C. Davis L.Rev. 215, 222 [hereafter Comment].) 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. (Fleming, supra, p. 173.) 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. (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 508 [156 Cal. Rptr. 41, 595 P.2d 619].)

695*695 (2) A person held liable under the doctrine of peculiar risk is entitled to equitable indemnity from the independent contractor at fault for the injury. (Fleming, supra, p. 173; Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d at p. 508; see Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628 [119 Cal. Rptr. 449, 532 P.2d 97] [distinguishing the right to indemnity based on principles of equity from contractually based indemnity]; Pearson Ford Co. v. Ford Motor Co. (1969) 273 Cal. App.2d 269, 272 [78 Cal. Rptr. 279] [describing the principle underlying equitable indemnity as the idea “`that everyone is responsible for the consequences of his [or her] own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him [or her]'”].) Thus, although peculiar risk is sometimes described as a “nondelegable duty” rule (see Comment, The Peculiar Risk Doctrine: High Rise Benefits for California Construction Workers (1986) 19 Loy. L.A.L.Rev. 1495, 1498 [hereafter High Rise Benefits]; Comment, supra, 22 U.C. Davis L.Rev. 215, 219), it is in effect a form of vicarious liability. (Prosser, supra, § 71, at p. 511; Fleming, supra, at pp. 172-173; see also A Workable Proposal, supra, 48 Fordham L.Rev. 1165, 1171.)^[2]

(3) A critical inquiry in determining the applicability of the doctrine of peculiar risk is whether the work for which the contractor was hired involves a risk that is “peculiar to the work to be done,” arising either from the nature or the location of the work and “`against which a reasonable person would recognize the necessity of taking special precautions.'” (Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d 502, 509, quoting Griesel v. Dart Industries, supra, 23 Cal.3d 578, 586; Rest.2d Torts, § 413, com. b.; id., § 416, com. b.) The term “peculiar risk” means neither a risk that is abnormal to the type of work done, nor a risk that is abnormally great; it simply means “`a special, recognizable danger arising out of the work itself.'” (Aceves v. Regal Pale Brewing Co., supra, at p. 509, quoting Rest.2d Torts, § 413, com. b.) For that reason, as this court has pointed out, the term “special risk” is probably a more accurate description than “peculiar risk,” which is the terminology used in the Restatement. (Aceves v. Regal Pale Brewing Co., supra, at p. 509, fn. 2.)

696*696 (4) Even when work performed by an independent contractor poses a special or peculiar risk of harm, however, the person who hired the contractor will not be liable for injury to others if the injury results from the contractor’s “collateral” or “casual” negligence. (Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d at p. 510; Prosser, supra, § 71, at pp. 515-516; Rest. 2d Torts, § 426.) An independent contractor’s negligence is collateral, we have said, when the negligence involves an “operative detail of the work, as distinguished from the general plan or method to be followed.” (Aceves v. Regal Pale Brewing Co., supra, at p. 510.) But, as we have also acknowledged, it is often difficult to distinguish those risks that are inherent in the work from those that are collateral, and the line to be drawn between the two types of risks is “shadowy.” (Van Arsdale v. Hollinger, supra, 68 Cal.2d 245, 252, quoting Harper, Law of Torts (1933) § 292.)

III

(1b) As we have seen, in its original form the doctrine of peculiar risk made a landowner liable to innocent bystanders or neighboring property owners who were injured by the negligent acts of an independent contractor hired by the landowner to perform dangerous work on his or her land. In turn, the landowner could sue the contractor for equitable indemnity.

Gradually, the peculiar risk doctrine was expanded to allow the hired contractor’s employees to seek recovery from the nonnegligent property owner for injuries caused by the negligent contractor. California is among the minority of jurisdictions that has adopted this view. We applied this expansion of the doctrine for the first time in Woolen v. Aerojet General Corp. (1962) 57 Cal.2d 407, 410-411 [20 Cal. Rptr. 12, 369 P.2d 708], seeing “no reason to hold otherwise.” Since Woolen, we have approved peculiar risk liability in favor of an independent contractor’s employee in several decisions. (See, e.g., Ferrel v. Safway Steel Scaffolds (1962) 57 Cal.2d 651 [21 Cal. Rptr. 575, 371 P.2d 311]; Van Arsdale v. Hollinger, supra, 68 Cal.2d 245; Griesel v. Dart Industries, Inc., supra, 23 Cal.3d 578; Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d 502.) Privette, the property owner sued here, recognizes this. He urges us, however, to reconsider Woolen and its progeny. He argues that when the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor. We agree, for reasons that follow.

IV

Under the Workers’ Compensation Act (hereafter the Act), all employees are automatically entitled to recover benefits for injuries “arising out of and 697*697 in the course of the employment.” (Lab. Code, § 3600, subd. (a);^[3] see also § 3716 [setting up an uninsured employers fund to provide benefits for employees not covered by workers’ compensation insurance].) The workers’ compensation system was created to provide, in the words of our state Constitution, “for the comfort, health and safety and general welfare of any and all workers and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workers in the course of their employment….” (Cal. Const., art. XIV, § 4.)

In S.G. Borello & Sons, Inc. v. Department of Industrial Relations, supra, 48 Cal.3d 341, 354, we articulated four distinct objectives of the Act: “(1) to ensure that the cost of industrial injuries will be part of the cost of goods rather than a burden on society, (2) to guarantee prompt, limited compensation for an employee’s work injuries, regardless of fault, as an inevitable cost of production, (3) to spur increased industrial safety, and (4) in return, to insulate the employer from tort liability for his employees’ injuries. [Citations.]”

When the conditions of compensation exist, recovery under the workers’ compensation scheme “is the exclusive remedy against an employer for injury or death of an employee.” (Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 468 [165 Cal. Rptr. 858, 612 P.2d 948, 9 A.L.R.4th 758], citing § 3602.) The purpose of this exclusivity provision is to give efficacy to the theoretical “compensation bargain” between the employer and employee. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16 [276 Cal. Rptr. 303, 801 P.2d 1054].) In Shoemaker, we described that bargain as follows: “[T]he employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations in the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort. [Citations.]” (Ibid.) The Act’s exclusivity clause applies to work-related injuries regardless of fault, including those attributable to the employer’s negligence or misconduct (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 [233 Cal. Rptr. 308, 729 P.2d 743]), as well as the employer’s failure to provide a safe workplace (Royster v. Montanez (1982) 134 Cal. App.3d 362, 371 [184 Cal. Rptr. 560]). But the exclusivity clause does not preclude the employee from suing anyone else whose conduct was a proximate cause of the injury. (§ 3852; Dafonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 598 [7 Cal. Rptr.2d 238, 828 P.2d 140]; County of San Diego v. Sanfax Corp. (1977) 19 Cal.3d 862, 873 [140 Cal. Rptr. 638, 568 P.2d 363].)

698*698 To encourage employers to obtain workers’ compensation insurance for their employees, the Act’s “exclusive remedy” clause does not apply in favor of employers that fail to obtain such insurance, and consequently they are not immune from tort liability for such injuries. (§ 3706.) Conversely, an employer that provides compensation coverage has no further liability for workplace injuries to an employee. Therefore, if a nonnegligent third party pays damages for an employee’s injuries that are attributable in whole or in part to the negligence of the employer, the Act’s limitations on employer liability preclude the third party from obtaining equitable indemnity from the employer. (§ 3864; see generally, Alameda Tank Co., Inc. v. Starkist Foods, Inc. (1980) 103 Cal. App.3d 428, 433 [162 Cal. Rptr. 924].)

V

When an independent contractor causes injury to the contractor’s own employee, the Act’s “exclusive remedy” provision shields the contractor from further liability for the injury. Yet, under the expansive view of the peculiar risk doctrine that has been adopted in California and a minority of other jurisdictions, the person who hired the independent contractor can, for the same injury-causing conduct of the contractor, be held liable in a tort action for the injuries to the contractor’s employee. Because this expansive view produces the anomalous result that a nonnegligent person’s liability for an injury is greater than that of the person whose negligence actually caused the injury, it has been widely criticized. (See generally, Comment, supra, 22 U.C. Davis L.Rev. at pp. 231-235; id. at p. 218, fn. 18 [and cases cited therein]; High Rise Benefits, supra, 19 Loyola L.A.L.Rev. 1495; A Workable Proposal, supra, 48 Fordham L.Rev. 1165.) Indeed, most courts that have considered the issue have refused to extend the peculiar risk doctrine to allow such an employee to recover tort damages from the person who hired the contractor. (Wagner v. Continental Cas. Co. (1988) 143 Wis.2d 379 [421 N.W.2d 835]; Peone v. Regulas Stud Mills (1987) 113 Idaho 374 [744 P.2d 102, 106]; Jones v. Chevron U.S.A., Inc. (Wyo. 1986) 718 P.2d 890; Vertentes v. Barletta Co., Inc. (1984) 392 Mass. 165 [466 N.E.2d 500]; Johns v. New York Blower Co. (Ind. Ct. App. 1982) 442 N.E.2d 382 [34 A.L.R.4th 904]; Tauscher v. Puget Sound Power and Light Co. (1981) 96 Wn.2d 274 [635 P.2d 426]; Cooper v. Metropolitan Government of Nashville and Davidson County (Tenn. Ct. App. 1981) 628 S.W.2d 30; Conover v. Northern States Power Co. (Minn. 1981) 313 N.W.2d 397; Jackson v. Petit Jean Electric Co-op (1980) 279 Ark. 506 [606 S.W.2d 66]; Donch v. Delta Inspection Services, Inc. (1979) 165 N.J. Super. 567 [398 A.2d 925]; Vagle v. Pickands Mather & Co. (8th Cir.1979) 611 F.2d 1212, 1218 [interpreting Minn. law]; Sloan v. Atlantic Richfield Co. (Alaska 1976) 552 P.2d 157; King v. Shelby Rural Electric Cooperative Corp. (Ky. Ct. App. 1973) 502 S.W.2d 659; Olson 699*699 v. Kilstofte and Vosejpka, Inc. (D.Minn. 1971) 327 F. Supp. 583, 587; Welker v. Kennecott Copper Co. (1965) 1 Ariz. App. 395 [403 P.2d 330]; but see Elliott v. Public Service Co. of N.H. (1986) 128 N.H. 676 [517 A.2d 1185].)

As one court observed, the “principal” who hires an independent contractor should be subject to no greater liability “than its [independent contractor] agent,” whose exposure for injury to an employee is limited to providing workers’ compensation insurance. (Olson v. Kilstofte and Vosejpka, Inc., supra, 327 F. Supp. 583, 587.) Other courts have reasoned that the rule of workers’ compensation exclusivity, which shields an independent contractor who pays workers’ compensation insurance premiums from further liability to its employees for on-the-job injuries, should equally protect the property owner who, in hiring the contractor, is indirectly paying for the cost of such coverage, which the contractor presumably has calculated into the contract price. Therefore, these courts have concluded, the property owner should not have to pay for injuries caused by the contractor’s negligent performance of the work when workers’ compensation statutes already cover those injuries. (Jones v. Chevron U.S.A., Inc., supra, 718 P.2d at p. 899; Johns v. New York Blower Co., supra, 442 N.E.2d at p. 388; Vertentes v. Barletta Co., Inc., supra, 466 N.E.2d at p. 503; Welker v. Kennecott Copper Co., supra, 403 P.2d 330, 338-339; Tauscher v. Puget Sound Power and Light Co., supra, 635 P.2d at p. 430; Jackson v. Petit Jean Elec. Co-op., supra, 606 S.W.2d at p. 69; Wagner v. Continental Cas. Co., supra, 421 N.W.2d at pp. 842-843; Donch v. Delta Inspection Services, Inc., supra, 398 A.2d at p. 929; Peone v. Regulas Stud Mills, supra, 744 P.2d at p. 106; see also A Workable Proposal, supra, 48 Fordham L.Rev. at p. 1180.)

Similar reasoning appears in a tentative draft of the Restatement Second of Torts; it too concludes that a hiring party’s liability should not extend to an independent contractor’s employees who are injured as a result of the negligently performed contracted work. (Rest.2d Torts (Tent. Draft. No. 7, Apr. 16, 1962) ch. 15, special note, pp. 17-18 [recognizing that workplace injuries incurred by an independent contractor’s employees are covered by workers’ compensation insurance, the cost of which is “included by the contractor in his contract price” and “ultimately … borne by the defendant who hires him”].) The tentative draft’s proposed limitation on liability was not included in the Restatement itself, however, because of the lack of uniformity in the workers’ compensation statutes that have been adopted throughout the United States. (See Proceedings of ALI (39th Ann. Meeting, 1962) pp. 244-246; see also High Rise Benefits, supra, 19 Loyola L.A. L.Rev. 1496, 1505.)

Courts and legal commentators have expressed concern that to allow an independent contractor’s employees who incur work-related injuries compensable under the workers’ compensation system to also seek damages 700*700 under the doctrine of peculiar risk from the person who hired the contractor would give those employees an unwarranted windfall. As these authorities point out, to permit such recovery would give these employees something that is denied to other workers: the right to recover tort damages for industrial injuries caused by their employer’s failure to provide a safe working environment. This, in effect, would exempt a single class of employees, those who work for independent contractors, from the statutorily mandated limits of workers’ compensation. (Vagle v. Pickands Mather & Co., supra, 611 F.2d 1212, 1218; High Rise Benefits, supra, 19 Loyola L.A. L.Rev. 1495, 1499; A Workable Proposal, supra, 48 Fordham L.Rev. at p. 1180; see also West v. Guy F. Atkinson Construction Co. (1967) 251 Cal. App.2d 296, 301 [59 Cal. Rptr. 286].) Moreover, to impose vicarious liability for tort damages on a person who hires an independent contractor for specialized work would penalize those individuals who hire experts to perform dangerous work rather than assigning such activity to their own inexperienced employees. (Wagner v. Continental Cas. Co., supra, 421 N.W.2d at p. 842; King v. Shelby Rural Electric Cooperative Corp., supra, 502 S.W.2d at p. 663.)

VI

As mentioned earlier, we have, since our decision in Woolen v. Aerojet General Corp., supra, 57 Cal.2d 407, adhered to the view that under the doctrine of peculiar risk an employee of an independent contractor injured on the job may seek tort damages from the person who hired the contractor. Until today, we have had no occasion to attempt to reconcile our decision in Woolen with the provision of the workers’ compensation scheme limiting employer liability for an employee’s work-related injury to providing workers’ compensation coverage.

Our most recent application of the peculiar risk doctrine occurred in Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d 502, a case in which an employee of a wrecking firm hired by a brewery to demolish some of its buildings was awarded tort damages against the brewery owner for on-the-job injuries. In discussing the issue of the workers’ compensation insurance carrier’s entitlement to reimbursement from the brewery for benefits paid to the employee, we made only a passing reference to the employee’s receipt of workers’ compensation. We did not address the propriety of imposing vicarious liability on the brewery owner for a workplace injury that was subject to workers’ compensation coverage. To justify imposition of liability on the brewery owner for injuries to the independent contractor’s employee, we merely reiterated policy reasons supporting peculiar risk liability generally, including the ability of persons held liable under the peculiar risk 701*701 doctrine to seek indemnification from the negligent contractor. (Aceves v. Regal Pale Brewing Co., supra, at p. 508.) Not considered in Aceves, however, was the unavailability of equitable indemnity from a negligent employer whose employee is covered by workers’ compensation, an issue we address here.

When a property owner or general contractor who hires an independent contractor for work presenting a peculiar risk of harm to others is held liable under the doctrine of peculiar risk for injuries to an innocent bystander or an owner of neighboring land, the property owner or general contractor can, for the damages paid the injured party, obtain equitable indemnity from the independent contractor responsible for the injuries. This ensures that the ultimate responsibility for the harm caused by the peculiar risk of the work done is borne by the individual or entity at fault for the injury. But when the person injured is an employee of the independent contractor, the exclusivity provisions of the workers’ compensation scheme shield the negligent contractor from an action seeking equitable indemnity. (§ 3864.) Not present in such a case is a significant policy justification for imposing peculiar risk liability on a nonnegligent party: the ability of the person held liable on a peculiar risk theory to be made whole by the party responsible for the injury. As one California Court of Appeal has recognized, affixing liability without indemnification places an onerous burden on someone who is “fault-free.” (Anderson v. Chancellor Western Oil Dev. Corp. (1975) 53 Cal. App.3d 235, 242-243, fn. 2 [125 Cal. Rptr. 640].)

The availability of equitable indemnity, as mentioned earlier, is but one of several policy reasons that generally support the imposition of peculiar risk liability. In addition, 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. (Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d at p. 508.) But in the case of on-the-job injury to an employee of an independent contractor, the workers’ 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.

Therefore, when considered in light of the various goals that the workers’ compensation statutes seek to achieve, our conclusion in Woolen v. Aerojet 702*702 General Corp., supra, 57 Cal.2d 407, that peculiar risk liability should extend to the employees of the independent contractor, does not withstand scrutiny.^[4] Moreover, such a broad extension of the doctrine of peculiar risk is inconsistent with the approach taken by a majority of jurisdictions, and with the view expressed by the drafters of the Restatement Second of Torts.

VII

In his complaint against Privette (the owner of the duplex where roofing employee Contreras was injured while installing a roof), Contreras asserted Privette’s liability under the doctrine of peculiar risk for the injuries suffered. Without question, Contreras’s injuries arose “out of and in the course of … employment,” and thus are subject to workers’ compensation coverage. (§ 3600.) Thus, the doctrine of peculiar risk affords Contreras no basis for seeking damages from Privette for the same injuries compensable under the workers’ compensation scheme.

The complaint also alleged as a separate cause of action that Privette was negligent in his hiring of the Krause roofing firm, which employed Contreras. But, as mentioned at the outset, Contreras abandoned that theory of recovery.

Throughout this litigation, Privette has asserted that the injury-causing conduct, transporting hot tar up a ladder in a bucket, was a “collateral” as opposed to a “peculiar” risk of tar and gravel roofing. We need not address this contention in view of our conclusion that because workplace injuries are covered by workers’ compensation, liability under the doctrine of peculiar risk does not extend to the employees of an independent contractor hired to do dangerous work.

CONCLUSION

When, as here, the injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. Thus, in this case, roofing employee Contreras is precluded from suing duplex owner Privette for injuries compensable under the workers’ compensation system.

Accordingly, the judgment of the Court of Appeal is reversed with directions to grant the petition for writ of mandate ordering respondent court to enter judgment for defendant. The alternative writ is discharged.

703*703 Lucas, C.J., Mosk, J., Panelli, J., Arabian, J., Baxter, J., and George, J., concurred.

The petition of real party in interest for a rehearing was denied September 16, 1993, and the opinion was modified to read as printed above.

[1] At the time of the summary judgment motion, it was uncontested that Contreras, in response to interrogatories, had abandoned his theory that Privette was negligent in hiring Krause.

[2] The conclusion that peculiar risk is a form of vicarious liability is unaffected by the characterization of the doctrine as “direct” liability in situations when the person hiring an independent contractor “fails to provide in the contract that the contractor shall take [special] precautions.” (Rest.2d Torts, § 413; see Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d at p. 509; Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 585-586 [153 Cal. Rptr. 213, 591 P.2d 503].) Irrespective of whether a contract of hire provides that special precautions be taken, a person who employs an independent contractor to perform dangerous work is subject to liability under the doctrine of peculiar risk. (Rest.2d Torts, § 416.) Thus, peculiar risk liability is normally premised on the broader rule of vicarious liability for the contractor’s negligence. (See A Workable Proposal, supra, 48 Fordham L.Rev. 1165, 1171; Bower v. Peate, supra, 1 Q.B.D. at p. 326 [the contractor’s default is attributable to the person who authorized the work].)

[3] Further statutory references are to the Labor Code.

[4] To the extent that they hold to the contrary, Woolen v. Aerojet General Corp., supra, 57 Cal.2d 407, and its progeny are overruled.