McKown

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 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…

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 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…

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, at p. 222). 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 *227 contractor 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.,…