In Jeffrey Tverberg et al. v. Fillner Construction, Inc. the California Supreme Court has held that the doctrine of peculiar risk does not apply when an independent contractor hired by a subcontractor seeks to hold the general contractor vicariously liable for injuries arising from risks inherent in the nature of work over which the independent contractor had been granted control.

The doctrine of peculiar risk was developed by the courts to ensure that innocent third parties who are injured by the negligence of a contractor hired  to do inherently dangerous work would not have to depend on the contractor’s solvency in order to be compensated for injuries and could hold the hirer vicariously liable.

In this case, an independent contractor, Tverberg, was hired by a subcontractor to construct a metal canopy over some fuel-pumping units.  As part of the larger commercial-fuel facility construction project, the general contractor, Fillner, hired another subcontractor to erect eight bollards (concrete posts designed to prevent vehicles from colliding with fuel dispensers) which required the digging of large holes for footings.  While walking toward the metal canopy, plaintiff Tverberg fell into on of the holes and was injured.

Tverberg sued both the general contractor Fillner and the subcontractor who had hired Tverberg.  The trial court entered summary judgment for defendant Fillner.  The Court of Appeal reversed and held that the general contractor could be vicariously liable for Tverberg’s injuries based, in part, on the peculiar risk doctrine.

The Supreme Court granted the Petition for Review filed by Fillner and supported by ACIC.

In its 7-0 decision, the Supreme Court concluded that the peculiar risk doctrine did not apply to Tverberg's claim against Filner. The Court observed that the doctrine was created to protect innocent third parties.  As an independent contractor, Tverberg was delegated control to determine how the work was to be performed.  The Court noted that "this delegated control over the performance of the work removes the independent contractor from the category of 'innocent third parties' deserving of financial protection under the doctrine of peculiar risk."

A copy of the Supreme Court's opinion is available at www.courtinfo.ca.gov.