Monday December 19, 2005, the California Supreme Court issued an opinion in the Kinsman v. Unocal matter pertaining to landowner liability to employees of contractors for concealed hazards. (Kinsman v. Unocal, 2005 Cal. LEXIS 13684). Under Kinsman, landowner liability to the employees of contractors is based on the landowner’s failure to warn the contractor of hidden hazardous conditions.
There are two concepts that must be considered for purposes of liability under this opinion. First, the “landowner” can be the actual owner of the property or a possessor of the property that owes a duty of care to keep the premises safe. Second, the opinion recognizes that the contractor itself has a limited duty to inspect the premises to ensure a safe working environment for its employees. The duty to inspect is limited to the area(s) where the work is to be performed.
In order for the landowner to be held liable to the employee of a contractor three (3) factors must be met: (1) the landowner must know or reasonably should know of the hazardous condition; (2) the contractor must not know or could not have reasonably discovered the hazardous condition; and (3) the landowner must fail to warn the contractor of the hazardous condition. If the Landowner informs the General Contractor of the hazardous condition, then the Landowner essentially delegates the duty to warn the General Contractor’s employees of the condition to the General Contractor. In this situation, the Landowner would not be liable under Kinsman.
The Kinsman court reiterated that it supports the findings in Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny. Privette articulates the general rule that a contractor is not liable for injuries to employees of its independent contractor caused by an independent contractor’s performance of the work which was the subject of the subcontract. Id. at 693. Furthermore, it is unfair to impose liability on a hirer based on injuries arising from the performance of the contract work, noting first that it would be improper to allow an injured employee to recover in tort from the hirer when the hirer has in effect paid for workers’ compensation insurance by paying the contractor for services rendered. Id. at 701-702.
If you have any questions about the contents of this correspondence, or would like more information regarding the recent case law described above, please feel free to contact us at our website: www.sollp.com.

Frank T. Sabaitis
Melyssa A. Avola