Legal Memorandum: Defendant's Duty of Care to a Decedent

Issue: Under the laws of the state of California, when a dispute exists over whether a defendant’s duty to a decedent was delegated by contract to a third party, must a court refrain from granting summary judgment on the issue of whether the defendant owed the decedent a duty of care?

The California Supreme Court’s decision in Privette v. Superior Court (1993) 5 Cal. 4th 689, “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” or to a person who is not an employee of the independent contractor.  See Grahn v. Tosco Corp. (1997)  Cal. App. 4th  68 Cal. Rptr. 2d 806, 809.

As explained recently by the Grahn court, “Privette‘s concern about the fundamental unfairness of imposing vicarious liability on a nonnegligent hirer is entirely inapplicable where the hirer’s own negligent conduct has caused or contributed to the worker’s injury.”  Id., 68 Cal. Rptr. 2d at 812-13.  Thus,

quite apart from any question of vicarious responsibility, the employer may be liable for any negligence of his own in connection with the work to be done.  When there is a foreseeable risk of harm to others unless precautions are taken, it is his duty to exercise reasonable care to select a competent contractor, and to provide, in the contract or otherwise, for such precautions.  So far as he gives directions for the work, furnishes equipment for it, or retains control over any part of it, he is required to exercise reasonable care for the protection of others; and he must likewise interfere to put a stop […]

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