March 20, 2006

E-Mail This Article Sarah B. Biser Sarah B. Biser is a partner in the litigation department, construction law practice group at Seyfarth Shaw. She has extensive experience in representing owners, developers and contractors in all stages of the construction process, including contract negotiations, drafting and contract administration. She may be reached at sbiser@seyfarth.com. Noah Lang Noah Lang is an associate in the litigation department at Seyfarth Shaw. He may be reached at nlang@seyfath.com. Download the complete opinion. California court's decision.

Supreme Court of California

By Sarah Biser & Noah Lang

Ray Kinsman et al. v. Unocal Corporation

No. 5118561
December 19, 2005

An employee of an independent contractor hired by owner of an oil refinery in California sued the refinery owner for injuries stemming from exposure to airborne asbestos while working at the refinery. The Supreme Court of California held that the refinery owner could be liable if (1) the refinery owner knew or reasonably should have known of a concealed pre-existing hazardous condition on its premises; (2) the contractor did not know and could not reasonably ascertain the condition; and (3) the landowner failed to warn the contractor about the condition.

During the 1950s, carpenter Ray Kinsman was employed by Burke & Reynold, an independent contractor hired by Unocal Corp. to perform scaffolding work at a Unocal refinery. Kinsman was exposed to airborne asbestos during the course of his work at the refinery.

Years later, Kinsman developed mesothelioma, a form of cancer associated with asbestos exposure. He then filed suit against Unocal Corp. for negligence. The parties stipulated that Kinsman was exposed to asbestos produced by other trades during his work at Unocal and that Kinsman bore no contributory fault. Further, Burke & Reynolds did not provide safety equipment to Kinsman and there was no specific evidence in the record regarding whether Burke & Reynolds, or any other contractor at Unocal, knew or should have known that asbestos posed a safety hazard.

Kinsman argued that Unocal should have warned Kinsman’s employer about the potential hazards of asbestos and adopted various safety measures. Kinsman also presented evidence showing that other oil companies had adopted safety measures, including improved ventilation, better plant design and use of respirators for persons on the premises.

Unocal, though conceding that it knew at that time that asbestos was dangerous, argued that Kinsman was not exposed to levels of asbestos considered unsafe at the time. The jury returned a verdict for Kinsman and awarded him more than $3 million in damages.

The issue on appeal in the Supreme Court of California was when, if ever, is a landowner liable to an employee of a hired independent contractor who is injured as the result of hazardous conditions on the landowner’s premises. The court held that a landowner that hires an independent contractor may be liable to that contractor’s employee if (1) the landowner knew or reasonably should have known of a concealed pre-existing hazardous condition on its premises; (2) the contractor did not know and could not reasonably ascertain the condition; and (3) the landowner failed to warn the contractor about the condition.

The court found that the trial court had not sufficiently instructed the jury that Unocal was liable only to the extent that it failed to warn about a hidden hazardous condition that was unknown and not reasonably ascertainable to the independent contractor. It therefore reversed the judgment and remanded for a new trial on that issue.

In California, a landowner who hires a contractor to work on its property must make contractors aware of concealed pre-existing hazards or risks that could injure the contractor’s employees.

Case participants: David M. Axelrad and Stephen E. Norris (Horvitz & Levy), Michael T. McCall, Robert M. Channell, Cyrian B. Taubena and Allan W. Ruggles (Walsworth Franklin, Bevins & McCall) for defendant and appellant.

Daniel U. Smith and Ted W. Pelletier (Law Offices of Daniel U. Smith), Harvey F. Wartnick, Charles C. Kelly II, Steven M. Harowitz, Stephen M. Tigerman and Richard A. Brody (Wartnick, Chaber, Harowitz & Tigerman) for plaintiffs and respondents.

Before: Judges Moreno, George, Kennard, Baxter, Werdegar, Chin and Cornell.

Opinion By: Judge Carlos R. Moreno.

Decision: Reversed and remanded.