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Author: Mario Yepez

Last Updated August 31, 2022

California’s Evolving Interpretation of Vicarious Liability

 

Vicarious liability, the doctrine that imposes liability on a party not directly at fault, is one of the most malleable concepts in California law. Most recently, the Fifth District Court of Appeals in Kern County analyzed the reach of two forms of vicarious liability — the peculiar risk doctrine and the nondelegable rule — in the unpublished matter of Ruckman v. Wildwood Farms.i

 

I. Before Ruckman v. Wildwood Farms

The Peculiar Risk Doctrine

The peculiar risk doctrine imposes liability for an independent contractor’s negligence when they were hired to do inherently dangerous work.ii It involves cases where a party hires an independent contractor to perform inherently dangerous work. The hiring party can be liable for an independent contractor’s negligent performance of that work.iii This exception to the common law rule was made to ensure bystanders injured by the negligence of an independent contractor hired to perform dangerous work can receive compensation not only by the negligent contractor but also by the property owner.iv

There are two key questions in evaluating the applicability of the peculiar risk doctrine: (i) whether the work being performed required special precautions because of a recognizable danger, and (ii) whether the bystander’s injury was the result of negligence related to the dangerous characteristics of the job.v Both these questions must be answered in the affirmative for the peculiar risk doctrine to apply.

 

The Nondelegable Duty Rule

The nondelegable duty rule is a form of vicarious liability that imposes liability on an owner or possessor of land based on the duties the owner or possessor owes prior to any injury causing incident.vi That is, an owner or possessor of land has certain pre-existing duties that are “non-delegable” — meaning they cannot be transferred to an independent contractor or other third party. Instead, the property owner may remain liable if the independent contractor fails to carry out the relevant duty. In other words, under the nondelegable duty rule, a party who owes a duty to others cannot delegate that duty to an independent contractor.vii For example, a property owner or possessor cannot escape liability for failure to maintain property in a safe condition by delegating such duty to an independent contractor.viii

 

II. How Ruckman v. Wildwood Farms has Impacted California’s Peculiar Risk Doctrine and Nondelegable Duty Rule

On June 1, 2021, the Fifth District Court of Appeals in Kern County reinforced the applicability of the peculiar risk doctrine and the nondelegable rule and fine-tuned how these two doctrines should be interpreted.ix

Ruckman stems from an incident in November 2015 where plaintiffs were injured when an excavating contractor hired by Wildwood Farms, the property owner, caused a high-pressure underground gas line to rupture. The gas-line rupture resulted in an explosion and fire that killed the driver of the excavating tractor and injured several neighbors on adjoining property.”x Plaintiffs sued Wildwood Farms. In October 2018, Wildwood was granted summary judgement because Wildwood was not liable to plaintiffs, given that it had contractually delegated all aspects of the work to the excavating contractor.xi

The summary judgment was reversed, and the court found Wildwood could be held vicariously liable for the contracted excavator that caused the explosion under the peculiar risk doctrine. Wildwood argued digging, excavating, and ripping farmland in the vicinity of an underground pipeline was a common practice in Kern County. Plaintiffs argued doing any work in the vicinity of an underground gas line was inherently dangerous and required special precautions. The court explained that the question of whether there was a peculiar risk is a question of fact.xii

Plaintiffs also argued Wildwood should be vicariously liable under the nondelegable duty rule based on Wildwood’s responsibility to maintain the property. The lower court disagreed. The appellate court agreed, finding this case did not involve a specified nondelegable duty. As the court explained, the nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work. The duty which a possessor of land owes to others to put and maintain it in reasonably safe condition is nondelegable. The court reasoned this case was not about a pre-existing duty owed by Wildwood – it was about a peculiar risk.xiii

 

III. Takeaway: Utilizing the Peculiar Risk Doctrine and Nondelegable Duty Rule to Fight

Nuclear Verdicts™

As Robert F. Tyson, Jr. writes in his book Nuclear Verdicts™: Defending Justice for All, “in every trial, you must accept responsibility for something.”xiv Mr. Tyson explains that accepting responsibility will defuse the number one source of runaway jury verdicts: anger.xv Accepting responsibility works, as Mr. Tyson explains, because accepting responsibility makes a defendant appear reasonable.xvi It also allows counsel to shift the focus to other parties’ comparative fault.xvii After defense counsel accepts responsibility, he/she can shift the jury’s focus to other culpable parties.

Shifting the jury’s focus to others is at the precipice of a vicarious liability analysis. Under the peculiar risk doctrine, a co-defendant owner or possessor of land cannot escape liability if it has hired an independent contractor to perform work that is inherently dangerous. Similarly, the owner or possessor of land cannot delegate to an independent contractor any pre-existing duties it may owe to third parties. By taking responsibility, then shifting the focus to other culpable parties, attorneys may defuse jury anger towards a client and avoid a nuclear verdict.

 

 

 

 


i Ruckman v. Wildwood Farms, LLC, F078655 (Cal. Ct. App. Jun. 1, 2021).

ii Ruckman, F078655.

iii See Privette v. Superior Court (1993) 5 Cal.4th 689 at 693; Clark v. Dziabas (1968) 69 Cal.2d 449, 451; Delgado v. W.C. Garcia & Associates (1963) 212 Cal.App.2d 5, 8; Ramsey v. Marutamaya Ogatsu Fireworks Co. (1977) 72 Cal.App.3d 516, 525; LaCount v. Hensel Phelps Const. Co. (1978) 79 Cal.App.3d 754, 772; Bonner v. Work. Comp. App. Bd. (1990) 225 Cal.App.3d 1023, 1035.

iv See, e.g. Privette, supra, 5 Cal.4th at pp. 700-702 & fn. 4.

v Ruckman, No. F078655 at 8, citing Privette, supra, 5 Cal.4th at p. 695.

vi SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 600-601.

vii Id.

viii Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 259-260.

ix Ruckman, F078655.

x Ruckman v. Wildwood Farms, LLC, No. F078655, 2021 WL 2197853, 1 (Cal. Ct. App. June 1, 2021).

xi Ruckman, F078655.

xii Ruckman v. Wildwood Farms, LLC, No. F078655, 2021 WL 2197853, 1, 19 (Cal. Ct. App. June 1, 2021) citing Castro v. State of California (1981) 114 Cal.App.3d 503, 511.

xiii Ruckman, F078655.

xiv Tyson, Robert, Nuclear Verdicts: Defending Justice for All (2020) La Jolla, California, Law Dog Publishing, LLC, page 14.

xv Id.

xvi Id at page 20.

xvii Id. At page 22.