PERSPECTIVES O WHAT CAMARGO V. TJAARDA DAIRY MEANS TO PREMISES DEFENDANTS IN CALIFORNIA ASBESTOS LITIGATION by n July 5, 2001, the California Supreme Court rendered a very favorable decision for premises defendants in California asbestos litigation, Camargo v. Tjaarda Dairy, Inc., 25 Cal. 4th 1235 (2001). Camargo has the immediate effect of confirming that the Court s prior ruling in Toland v. Sunland Housing Group, Inc., 18 Cal. 4th 253 (1998), abolished negligent hiring claims by injured employees of contractors against the contractors hirers. Perhaps more importantly, however, Camargo symbolizes yet another step down the road to the virtual elimination of premises liability in California asbestos litigation. This article summarizes the basis for asbestos-related premises liability claims and analyzes their potential future. I. 1 Jeremy D. Huie and 2 Marte J. Bassi The Emergence of Premises Defendants in California Asbestos Litigation In the early days of asbestos litigation in California, plaintiffs did not pursue premises owners. Plaintiffs instead focused on the manufacturers and suppliers of the asbestos products to which they allegedly were exposed. However, plaintiffs counsel soon recognized that these traditional defendants would not provide a bottomless source of compensation. For example, JohnsManville, one of the major manufacturers of asbestos-containing insulation and other products, declared bankruptcy in 1982. Plaintiffs began including new categories of defendants, such as railroad companies and asbestos brake lining manufacturers. Premises defendants became a new category of California asbestos defendants in the late 1980s and early 1990s. In the vast majority of asbestos-related premises liability cases, the plaintiff was some manner of trade an insulator, a pipefitter, a carpenter, etc. who worked for various contractors at numerous job sites throughout his career. Under the theory of premises liability, the plaintiff sued the owner of every job site at which he ever worked. The plaintiff may allege that the premises owner bears some liability even where the plaintiff worked at the owner s site for one week out of a decades-long career. Bringing in the premis4 HARRISMARTIN COLUMNS es defendants added potentially dozens of fresh sources of compensation for each plaintiff. Plaintiffs claim that the premises defendants failed to use reasonable care to keep the premises safe, failed to provide plaintiffs a reasonably safe place to work, and/or failed to warn of the dangers present on the premises. Plaintiffs seek liability based on vicarious liability and/or the premises defendants own affirmative acts of negligence. II. The Analytical Framework for Premises Liability When a plaintiff came to work at a premises, he either was a direct employee of the premises owner or the employee of an independent contractor hired by the premises owner to perform work at the site. In the former situation, the plaintiff generally is barred from bringing a tort claim against the premises owner-employer because the California workers compensation statutes provide the exclusive remedy for injuries arising out of and in the course of employment. Cal. Lab. Code 3602 (West Supp. 2001); but cf. Johns-Manville Prods. Corp. v. Contra Costa Superior Court, 27 Cal. 3d 465, 469 (1980) (cause of action may exist for aggravation of the disease because of the employer s fraudulent concealment of the condition and its cause). Therefore, the typical premises liability case involves a plaintiff who came onto the premises to work as a contractor s employee. The next issue is for whose negligence the premises owner potentially is liable. In addition to its own negligence, the premises owner arguably could be vicariously liable for the negligence of the contractors it hires. Generally, under California law, a premises owner is not liable for the negligence of an independent contractor hired to perform work on the premises. Van Arsdale v. Hollinger, 68 Cal. 2d 245, 250 (1968). However, over time the general rule has eroded to such a significant extent that the exceptions essentially have become the rule. Privette v. Superior Court, 5 Cal. 4th 689, 693 (1993).
The present analysis for a premises owner s potential vicarious liability arose out of the peculiar risk doctrine, a significant exception to the general rule of non-liability for the negligence of an independent contractor. This evolution of the case law contributing to this analysis is set forth below. In short, a non-negligent premises owner no longer can be held vicariously liable for injuries to a contractor s employee resulting from the contractor s negligence. Id.; Toland, 18 Cal. 4th at 267. Premises liability is limited to situations where the owner itself has engaged in some affirmative negligent act. Toland, 18 Cal. 4th at 267; Grahn v. Superior Court, 58 Cal. App. 4th 1373, 1393 (1997). A. The Peculiar Risk Doctrine The peculiar risk doctrine was one of the early theories asserted by California asbestos plaintiffs against premises defendants. 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 injury to others. Privette, 5 Cal. 4th at 691. Thus, a third person such as a bystander is assured of a source of compensation for his injuries. The premises owner, who is receiving the benefit of the contracted work, bears responsibility for any risks of injury to third persons and is motivated to see that adequate safeguards are taken to prevent such injuries. By 1993, California was among a minority of jurisdictions which extended the peculiar risk doctrine to permit recovery by the hired contractor s employees against a non-negligent property owner for injuries caused by the negligent contractor. Id. at 696; Woolen v. Aerojet General Corp., 57 Cal. 2d 407, 410-11 (1962). Numerous Courts of Appeal had approved peculiar risk liability in favor of an independent contractor s employee. See, e.g., Griesel v. Dart Indus., Inc., 23 Cal. 3d 578 (1979); Aceves v. Regal Pale Brewing Co., 24 Cal. 3d 502 (1979). Although none of these cases was asbestos-related, asbestos plaintiffs based their claims against premises defendants under the argument that the asbestos-related work performed on the premises was inherently dangerous. B. Privette v. Superior Court The California Supreme Court significantly altered the premises liability landscape with the landmark decision of Privette v. Superior Court, 5 Cal. 4th 689 (1993). The Court, for the first time, directly confronted the potential conflict between the existing approach to the peculiar risk doctrine and the system of workers compensation. Id. at 691. Premises owner Privette hired contractor Krause to install a new roof. Id. at 692. Krause employee Contreras was injured when he fell off a ladder and was burned with hot tar. Id. Contreras sought workers compensation benefits for his injuries. Id. Additionally, he sued Privette alleging, inter alia, 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. Id. Privette moved for summary judgment on the undisputed facts that he was not present when Contreras was injured, and that he did not participate in the Krause foreman s decision to have Contreras carry buckets of hot tar up a ladder. Id. at 693. The trial court denied Privette s motion, and the Court of Appeal affirmed. Id. The California Supreme Court granted review to determine the applicability of the peculiar risk doctrine. Id. The Court recognized several criticisms with California s expansive view of the doctrine, which allowed the injured employee of a contractor to maintain suit against the contractor s hirer as a remedy in addition to the workers compensation system. Id. at 698-700. The California approach gave the injured employee an unwarranted windfall because all classes of employees other than those employed by independent contractors were confined to the statutorily mandated limits of workers compensation. Id. Moreover, it produced the anomalous result that a non- negligent person s liability for an 5 ASBESTOS SEPTEMBER 2001 injury was greater than that of the person whose negligence actually caused the injury. Id. at 698. The Court found that in the case of on-thejob 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.... Id. at 701. This fulfillment of purpose, combined with the anomalous results created by the minority extension of the peculiar risk doctrine, led the Court to curtail California s expansion of the doctrine. Id. at 702. The Court concluded that when: 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. Id. Consequently, the Court of Appeal s decision was reversed in favor of Privette. Id. The Privette rule has been extended to protect the premises owner from vicarious liability for the negligence of another hired contractor who is not the employer of the plaintiff. Smith v. ACandS, Inc., 31 Cal. App. 4th 77, 95 (1994). [A] landowner that hires several independent contractors to work simultaneously on a project on its land is not vicariously liable under the peculiar risk doctrine for the negligence of any of the hired contractors which injures any of the contractors employees. Id. This extension is particularly useful in asbestos litigation, where there frequently may be several contractors present on the premises at any given time. C. Toland v. Sunland Housing Group, Inc. Privette s elimination of peculiar risk doctrine liability for premises owners was reinforced by a subsequent California Supreme Court decision, Toland v. Sunland Housing Group, continued on page 61
Camargo v. Tjaarda Dairy continued from page 5 Inc., 18 Cal. 4th 253 (1998). Premises owner Sunland hired contractor CLP to construct residential homes. Id. at 257. Plaintiff Toland, a CLP employee, was injured when a framed wall fell on him. Id. Toland sought recovery under the Workers Compensation Act, as well as against Sunland under the peculiar risk doctrine. Id. Sunland moved for summary judgment, asserting that Toland s action was barred under Privette. Id. Toland argued that Privette had eliminated peculiar risk liability for employees of independent contractors only in actions based on section 416 of the Restatement Second of Torts, but that Privette had no effect on an action such as his, which was brought under section 413. Id. Both sections 413 and 416 pertain to peculiar risk liability. Id. The trial court entered summary judgment for Sunland and the Court of Appeal affirmed. Id. Sections 413 and 416 both describe exceptions to general rule that the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. Id. at 259. Section 413 provides: One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer (a) fails to provide in the contract that the contractor shall take such precautions, or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions. Restatement (Second) of Torts 413 (1977). 3 Section 416 provides: One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise. Restatement (Second) of Torts 416 (1977). 4 [U]nder either section 413 or section 416, the hiring person is subject to liability for injuries to others resulting from the contractor s failure to take safety precautions while performing the inherently dangerous work. Toland, 18 Cal. 4th at 264. The Toland court held that Privette 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. 18 Cal. 4th at 267 (emphasis in original). The Court based its holding on policy, finding it illogical and unfair that a landowner or other person who hires an independent contractor should have greater liability for the independent contractor s negligence towards the contractor s employee than the independent contractor whose liability is limited to providing workers compensation coverage. Id. at 270. Consequently, the Court affirmed the Court of Appeal s decision in favor of Sunland. Id. D. Zamudio v. City & County of San Francisco While Privette and Toland explicitly discussed the peculiar risk doctrine, Courts of Appeal subsequently have used the Privette-Toland rule to bar generally vicarious liability for premises owners when the plaintiff is the injured employee of an independent contractor. See, e.g., Zamudio v. City & County of San Francisco, 70 Cal. App. 4th 445, 450 (1999). Zamudio characterized Toland as a sweeping holding which barred the assertion of vicarious liability in tort against the hirers of a subcontractor for injuries to the subcontractor s own employees. 70 Cal. App. 4th at 451. Premises owner CCSF hired contractor Largo to perform concrete work as part of a construction project. Id. at 447. Largo employee Zamudio injured himself while walking across a plank. Id. Largo selected and placed the plank. Id. A Largo superintendent directed Zamudio where to walk when he fell from the plank. Id. CCSF did not supervise or direct the method used to position the plank or the structures upon which it rested. Id. at 448. CCSF was not in the vicinity at the time of the fall. Id. at 452. The trial court granted summary judgment in favor of CCSF, and Zamudio appealed. Id. at 449. The Zamudio court relied on Privette and Toland to find that plaintiff was barred from recovering against CCSF under a theory of vicarious liability. 70 Cal. App. 4th at 451-52. Furthermore, the court found no evidence of any affirmative act by CCSF which contributed to Zamudio s fall. Id. at 452. Therefore, the summary judgment was affirmed. Id. at 455. III. Acts of Affirmative Negligence Creating Premises Owner Liability In the wake of Privette-Toland, the only remaining basis for premises liability is where the premises owner has engaged in some affirmative act of negligence. Zamudio, 70 Cal. App. 4th at 451-52. California asbestos plaintiffs look to Grahn v. Superior Court, 58 Cal. App. 4th 1373 (1997), for a list of the types of affirmative acts of negligence that might give rise to liability. Grahn is useful in that it is an asbestos-related personal injury case. Most of the reported California premises liability cases involve construction-related accidents, leaving asbestos litigants to wonder how the holdings translate for a situation where the injury is a latent disease. However, it is important to note that the Grahn decision was issued before Toland. Therefore, its continuing vitality is question- 61 ASBESTOS SEPTEMBER 2001
able. See Zamudio, 70 Cal. App. 4th at 451 (plaintiff could not rely upon Grahn to support his argument because Grahn did not have the benefit of the Toland reasoning). In Grahn, premises owner Tosco hired contractor Thorpe to perform insulation work at Tosco s oil refinery. Id. at 1379. Thorpe employee Grahn alleged injury through exposure to asbestos while he worked at the refinery. Id. Grahn asserted three theories of negligence against Tosco: negligent hiring of Thorpe; negligent exercise of retained control over the details of the work performed by Thorpe; and negligent use and maintenance of the premises thereby exposing others to an unreasonable risk of harm. Id. at 1380. The jury found Tosco partially at fault based upon its own negligence, and Tosco appealed. Id. at 1381. The Court of Appeal found that Privette did not abrogate the law in California that a hirer of an independent contractor may be liable to the independent contractor s employee for the hirer s own independent fault. Id. Although Privette eliminated the hirer s liability under theories grounded in the principles of vicarious liability, the hirer continued to remain potentially liable under theories based on the hirer s own injury-producing negligence. Id. at 1384. The court then analyzed Grahn s three theories of Tosco s alleged affirmative negligence, as set forth below. A. Negligent Hiring The Grahn court held that a premises owner could be liable for the injuries of an employee of an independent contractor hired to work on the premises under a theory of negligent hiring. Under this theory, liability is imposed under ordinary negligence principles for hiring an independent contractor the hirer knows or should know is incompetent to do the work and where the contractor s incompetence results in injury to others. Therefore, while the hirer is subject to liability for injury immediately caused by the independent contractor s deficiencies, the hirer s culpability is based on its own negligence in entrusting the work to the independent contractor ab initio. Id. at 1391. Thus, under Grahn a premises owner potentially could be culpable of negligently hiring the plaintiff s contractor employer if it knew or should have known that the contractor was incapable of performing the work without creating an unreasonable risk of harm. B. Negligent Exercise of Retained Control Alternately, the Grahn court held that a premises owner who hired the injured plaintiff s contractor employer may be liable to the plaintiff if it retained control over the operative details of the contractor s work, and negligently exercised such control such that plaintiff was injured thereby. Id. at 1393-94. Liability attached under this theory 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. Id. at 1393. Citing McDonald v. Shell Oil Co., 44 Cal. 2d 785 (1955), the Grahn court explained that the degree of control necessary for the creation of a legal duty must involve either the direct management of the means and methods of the independent contractor s activity or the provision of the specific equipment that caused the injury. Id. The Grahn court found sufficient retention of control under the facts of that case: Tosco retained an active role in site safety, including reserving the authority to stop Thorpe s work in order to effectuate asbestos abatement at the job sites. In addition, evidence was submitted that Tosco expressly retained responsibility for conducting industrial/hygiene monitoring at Thorpe s job-sites and issued permits to Thorpe listing the safety equipment Tosco required Thorpe s workers to wear. Id. at 1394. 62 HARRIS M ARTIN COLUMNS Due to the lack of other published asbestosrelated decisions on the control issue, this fact pattern has served in California asbestos litigation as the standard for arguing whether or not a premises owner s conduct amounted to retention of control. C. Negligent Use or Maintenance of the Premises The Grahn court also recognized a common law theory of negligent use or maintenance of the premises. 58 Cal. App. 4th at 1396. A premises owner generally is required to exercise reasonable care in maintaining the premises in order to avoid exposing persons to an unreasonable risk of harm. Id. While this duty extends to employees of an independent contractor working on the premises, the existence of a dangerous condition thereon does not necessarily subject the hirer to liability for physical harm to the contractor s employees. Id. at 1398. Where the operative details of the work are not under the control of the hirer and the dangerous condition causing injury is either created by the independent contractor or is, at least in part, the object of the work of the independent contractor, the duty to protect the independent contractor s employees resides with the independent contractor and not the hirer who may also generally control the premises. In such cases, the hirer is entitled to assume that the independent contractor will perform its responsibilities in a safe manner, taking proper care and precautions to assure the safety of its employees. Id. In the specific context of asbestos-related injury, the court recognized that asbestos materials do not pose a health risk when they are intact and undisturbed. See id. at 1397-98 (court found that California law supported Tosco s arguments to this effect). Thus, the mere presence of undisturbed asbestos on the premises is not a dangerous condition on the property. See id. What renders the asbestos potentially dangerous, i.e., creates the dangerous condition, is the contractor s own work installing or removing asbestos-containing insulation, repairing pipe, replacing gaskets, etc. Id. In such cases, the contractor is responsible for its employees safety. Id. at 1398.
The court concluded that: in the absence of the hirer s retention of control of the methods or operative details of the independent contractor s work, the hirer cannot be held liable to the independent contractor s employee as a result of the dangerous condition on the hirer s property if: 1) a preexisting dangerous condition was known or reasonably discoverable by the contractor, and the condition is the subject of at least a part of the work contemplated by the independent contractor; or 2) the contractor creates the dangerous condition on the hirer s property and the hirer does not increase the risk of harm by its own affirmative conduct. Id. at 1401. IV. Camargo v. Tjaarda Dairy, Inc. Until 2001, premises liability cases in California asbestos litigation focused upon the three Grahn theories of affirmative negligence described above. In particular, plaintiffs pursued the negligent hiring theory under the idea that, since the plaintiff was injured, the contractor must have been incompetent and the premises owner must have been negligent in hiring the contractor. That practice changed sharply following the recent California Supreme Court decision in Camargo v. Tjaarda Dairy, Inc. Camargo squarely addressed the issue of whether the negligent hiring claim set forth in Grahn still retained vitality after Toland. Premises owner Tjaarda hired independent contractor Golden Cal to scrape manure out of its corrals. Camargo, 25 Cal. 4th at 1238. Golden Cal employee Camargo was killed when his tractor rolled over as he was driving over a large mound of manure. Id. Camargo s heirs sued Tjaarda on the theory that it was negligent in hiring Golden Cal because it failed to determine whether Camargo was qualified to operate the tractor safely. Id. The trial court granted Tjaarda s motion for summary judgment, holding that Toland barred an injured contractor s employee from pursuing a negligent hiring claim against the contractor s hirer. Id. The Court of Appeal reversed, and the California Supreme Court granted review. Id. The Court held that an employee of a contractor should be barred from seeking recovery from the hirer of his contractor employer under the theory of negligent hiring. Id. at 1244. The holding was based on several policy reasons: (1) the unfairness of imposing liability on a non-negligent hirer when the negligent contractor s liability is limited to providing workers compensation coverage; (2) the rule of workers compensation exclusivity, which should shield the hirer who indirectly has paid for the cost of coverage through the contract price; and (3) the unwarranted windfall that would accrue to employees of independent contractors if they were allowed to be the only class of workers who could recover tort damages for industrial injuries caused by their employers failure to provide a safe working environment. Id. at 1244-45. Consequently, the Court reversed the Court of Appeal in favor of Tjaarda. Id. at 1245. V. The Present State of Asbestos-Related Premises Liability Claims At present, asbestos plaintiffs avenues for recovering against premises defendants have been substantially restricted when the plaintiffs are employees of independent contractors. The Privette-Toland rule has done away with the premises owner s vicarious liability in this situation. What remains is liability for the premises owner s affirmative acts of negligence. 5 The case law recognizes two such types of negligence: negligent exercise of retained control and negligent use or maintenance of the premises (dangerous condition). Negligent exercise of retained control is difficult for plaintiffs to prove because the typical premises owner-contractor relationship at the time of the alleged exposures simply did not support retained control. A premises owner usually hired the contractor to come on-site to perform certain work that the owner s own employees lacked the ability or expertise to do. The premises owner may have supplied general work plans or retained a general right to supervise the work and inspect it for satisfactory performance. However, the control over the means and methods of performing the work almost always resided with the contractor. The premises owner usually would not tell the contractor or its employees how the work should be done. The contractor s employees were supervised by the contractor s foremen or by union shop stewards present at the site. Employees typically used their own personal tools or those provided by their employer. The contractor, or other independent contractors at the site, frequently provided all of the materials and equipment used as well. On these standard facts, the Grahn claim of negligent exercise of retained control does not hold up. In the rare instance when a premises owner can be shown to have retained control over the operative details of the contractor s work, plaintiffs may be able to establish liability. While California asbestos plaintiffs frequently plead negligent use or maintenance of the premises, the theory is not pursued as aggressively as retained control (or as negligent hiring was before Camargo). This likely is because of the difficulty surmounting the standard set by Grahn. A premises defendant should be able to defeat this claim by showing that the contractor knew that the job would require its employees to work with or around asbestos-containing materials, and that the defendant did not affirmatively increase the risk of harm. Given that plaintiffs allege that asbestos-containing materials and persons working with those materials were always present at all of their job sites, it is implausible that a contractor would be oblivious to that condition. Lastly, a premises defendant may be liable if its own employees engaged in activities that directly exposed the plaintiff to asbestos. For example, the plaintiff may allege that the defendant s employees created dust in his work area by tearing out insulation. The Privette-Toland rule does not protect against such an affirmative act of negligence. VI. The Future of Asbestos-Related Premises Liability Claims 63 ASBESTOS SEPTEMBER 2001
Justice Werdegar s concurring opinion in Camargo notes that the majority opinion relied upon very broad arguments that, if given their full logical scope, would seem to bar virtually all liability on the part of hirers for injuries to contractors employees, however direct and personal the hirer s negligence.... 25 Cal. 4th at 1246. Indeed, an injured contractor s employee will always have workers compensation as a remedy, regardless of how egregious the hirer s negligence. If the Court continues to rely steadfastly upon the stated policy considerations, the Privette-Toland rule may eliminate premises liability altogether. The Court continues to examine the effect of Privette-Toland. Review has been granted in cases that present the question of whether the Privette-Toland rationale should apply as well to the tort of negligent exercise of retained control (Hooker v. Department of Transp., review granted Nov. 1, 2000, S091601; Minster v. Contadina Food, Inc., 84 Cal. App. 4th 442 (2000), review granted Jan. 17, 2001, S093526) 6 or the tort of negligent provision of unsafe equipment (McKown v. Walmart Stores, Inc., 82 Cal. App. 4th 562 (2000), review granted Oct. 18, 2000, S091097). Camargo, 25 Cal. 4th at 1245 n.2. These cases either will complete the line of reasoning begun in Privette and eliminate the remaining common law theories of premises owner negligence, or will establish the outer boundaries of where potential liability remains. 7 In either scenario, a premises defendant likely will remain liable where its own employees engage in asbestos-creating activities in the vicinity of the plaintiff. However, in the absence of any other theory of premises liability, this class of potential liability might more accurately be characterized as basic negligence irrespective of the defendant s status as a premises owner. For purposes of California asbestos cases, the era of premises defendants may become another chapter in the history of the litigation. Endnotes: 1 Jeremy D. Huie is an associate at Bassi, Martini & Blum LLP in San Francisco. The firm represents premises and product liability defendants in California asbestos litigation. 2 Marte J. Bassi is a partner at Bassi, Martini & Blum LLP and the West Coast Regional Contributing Editor for Columns Asbestos 3 Both sections 413 and 416 refer to the risk of harm to others. The peculiar risk 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. Toland, 18 Cal. 4th at 256. While Privette and Toland have eliminated premises owner liability where the plaintiff is the contractor s own employee, the peculiar risk doctrine appears to have continuing vitality where the plaintiff is an innocent bystander or neighbor. 4 The introductory note to section 416 describes the hirer s duty as one which he is not free to delegate to the contractor. Restatement (Second) of Torts 416, intr. note (1977). This has led to a characterization of section 416 peculiar risk liability as a nondelegable duty to exercise due care. Van Arsdale v. Hollinger, 68 Cal. 2d 245, 255 (1968); see Brown v. George Pepperdine Found., 23 Cal. 2d 256 (1943) (landlord can not delegate to contractor duty to maintain land in reasonably safe condition). To the extent that Privette and Toland have eliminated section 416 liability where the plaintiff is the employee of an independent contractor hired by the premises owner, this form of nondelegable duty has been abolished. See Srithong v. Total Investment Co., 23 Cal. App. 4th 721, 726-27 (1994) (nondelegable duty rule is a form of vicarious liability). 64 HARRIS M ARTIN COLUMNS Plaintiffs improperly also characterize as nondelegable duties the broad duty to exercise reasonable care to avoid causing harm to another, Cal. Civ. Code 1714 (Lexis 2001), or duty to maintain a safe workplace. An employee of a contractor can sue the contractor s employer only for specific, nondelegable duties in certain cases, such as may arise when a statute provides specific safeguards or precautions to ensure the safety of others. Felmlee v. Falcon Cable TV, 36 Cal. App. 4th 1032, 1038 (1995). In the absence of specific provisions, a broad order speaking of a general duty to maintain safe conditions for employees does not give rise to an action for breach of a nondelegable duty. Id. at 1039; cf. Snyder v. Southern Cal. Edison Co., 44 Cal. 2d 793, 795, 800 (1955) (specific rule requiring utility poles to be sunk six and one-half feet into the ground constituted a specific, well-defined, affirmative nondelegable duty). Therefore, reliance on the nondelegable duty rule in the absence of specific precautions required by law and not taken is misplaced. 5 Some asbestos plaintiffs continue to allege a breach of a nondelegable duty owed by premises defendants to persons coming onto the property. 6 Indeed, the Minster court expressed considerable doubt that the claim of an injured contractor s employee against the contractor s hirer for negligent exercise of retained control remains viable after Toland. 84 Cal. App. 4th at 460 n.6. The Fourth District Court of Appeal also concluded that liability can not be imposed under a retained control theory when the hirer s failure is not shown to have affirmatively contributed to the creation or persistence of the hazard causing the plaintiff s injuries. Villafana v. Camco Pac. Constr. Co., Inc., 91 Cal. App. 4th 189, 189 (2001). 7 For example, the Court may find it equitable to impose liability upon a premises owner who truly does dominate the methods and means of the contractor s work, including insistence upon the use of specific products in specific ways, if the negligent exercise of such control is the proximate cause of the plaintiff s injury. This may be sufficient to outweigh the policy reasons enunciated in Privette and Toland. As a practical matter, premises defendants rarely will be found to be so involved in the contractor s work.