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Calif. High Court Tackles Question of Landowner Liability in Asbestos Case

Jan. 18, 2006

If a landowner hires an independent contractor to do some work on his property, and an employee of the contractor is injured while doing that work, is the landowner liable?

Josh Cable

The California Supreme Court recently tackled that question in its review of a lawsuit filed by Ray Kinsman, a carpenter who contends he developed mesothelioma from exposure to airborne asbestos while doing contract work during the 1950s at a Unocal refinery in Wilmington, Calif.

A jury attributed 15 percent of the responsibility for Kinsman's illness to Unocal it assigned 85 percent of the blame to "all others," the definition of which is unclear to the high court and ordered Unocal to pay Kinsman more than $3 million in compensatory damages. The First District Court of Appeal in San Francisco reversed the jury verdict and ordered a new trial, pointing out that the jury likely would have ruled in favor of Unocal if it had known of the appeals court's interpretation of a landowner's legal liability.

In its Dec. 19 opinion, the California Supreme Court in San Francisco upheld the appeals court's reversal of the jury verdict but also reversed parts of the appeals court's opinion.

The high court concluded that a landowner may be liable to a contractor's injured employee if several conditions are met:

The landowner knew, or should have known, of a latent or concealed pre-existing hazardous condition on its property;
The contractor did not know and could not have reasonably discovered this hazardous condition; and
The landowner failed to warn the contractor about this condition.

The state Supreme Court reversed the jury's decision on the basis that the jury did not receive proper instruction on the key legal issue in the case.

Prior to the jury's verdict, the trial court instructed the jury on a premises liability theory and a negligent retention of control theory. The jury ruled in favor of Kinsman based on the premises liability theory, which was misapplied to this case, according to the high court.

"Because the general premises liability instruction given does not make clear that the hazard must have been unknown and not reasonably ascertainable to the independent contractor that employed Kinsman and to other contractors working contemporaneously on the premises the jury was instructed in error," Associate Justice Carlos Moreno wrote for the high court.

The Supreme Court remanded the case to the appeals court and ordered a new trial.

To view the California Supreme Court's opinion, visit http://www.courtinfo.ca.gov/opinions/documents/S118561.PDF.