Camargo

I concur under the compulsion of Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 [ 74 Cal.Rptr.2d 878 , 955 P.2d 504 ] (Toland). If, as the majority held in Toland , the hirer’s responsibility for its own negligence under the peculiar risk theory embodied in section 413 of the Restatement Second of Torts is deemed so “ ‘vicarious’ or ‘derivative’ ” (Toland, supra, at p. 265 ) that to recognize tort liability for the results of that negligence would be “unfair” (id. at p. 267), the same must be said of the hirer’s liability for its own negligence in choosing an unqualified contractor (Rest.2d Torts, § 411).

In a separate opinion in Toland , I took issue with the majority’s blanket approach, arguing that in some cases of peculiar risk negligence the hirer, rather than the contractor, will have the superior knowledge of, or ability to control, the circumstances creating a risk of injury, and that in those cases imposing tort liability on the hirer would be both fair and economically efficient despite the contractor’s limited liability under the workers’ compensation law. ( Toland, supra, 18 Cal.4th at pp. 271, 275-280 (conc. & dis. opn. of Werdegar, J.).) The same could…

Alberto Camargo was killed when his tractor rolled over as he was driving over a large mound of manure in a corral belonging to Tjaarda Dairy. Camargo was an employee of Golden Cal Trucking, and Golden Cal Trucking was an independent contractor Tjaarda Dairy had hired to scrape the manure out of its corrals and to haul it away in exchange for the right to purchase the manure at a discount. Plaintiffs, Camargo’s wife and five children, sued defendants Tjaarda Dairy and Perry Tjaarda on the theory, among others, that they were negligent in hiring Golden Cal Trucking because they failed to determine whether Camargo was qualified to operate the tractor safely. The trial court granted defendants’ motion for summary judgment. With regard to the cause of action for negligent hiring, the trial court relied on our then recent decision in Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 [ 74 Cal.Rptr.2d 878 , 955 P.2d 504 ] (Toland), for its conclusion that an injured employee of an independent contractor may not bring such an action against the hirer of the contractor. Plaintiffs appealed, limiting their appeal to this issue, and the Court of Appeal reversed. The…