Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659

In Kinsman, Horvitz & Levy LLP obtained a unanimous California Supreme Court decision on behalf of Unocal Corporation, in which the Supreme Court limited the liability of landowners and others who retain contractors to perform work on the hiring party’s property. The Kinsman opinion is the latest in a series of six opinions, beginning with Privette v. Superior Court (1993) 5 Cal.4th 689, in which the Supreme Court has generally limited the liability of landowners and others for injuries to contractors’ employees arising from the performance of the contractors’ work. Horvitz & Levy LLP has either appeared in or consulted with counsel of record on many of the Privette cases, both in the Supreme Court, the Court of Appeal, and in trial courts.

Plaintiff Ray Kinsman was an employee of a contractor (Burke & Reynolds) hired by Unocal to erect scaffolding used by insulators and other maintenance workers at a Unocal refinery during the early 1950’s. Kinsman was exposed to asbestos from insulation that was removed during the contract work. He later developed mesothelioma and sued Unocal for negligent failure to warn him of the risk of asbestos exposure.

A jury returned a verdict in favor of Kinsman and his wife, resulting in a $3.7 million judgment against Unocal. The Court of Appeal reversed and remanded for a new trial. Unocal retained Horvitz & Levy LLP after the Supreme Court granted review to consider the circumstances in which a landowner can be liable for a dangerous condition on the landowner’s premises.

In its 7-0 decision, the Supreme Court agreed with Unocal that the premises liability instruction given to the jury was inadequate because it did not require the jury to consider whether Burke & Reynolds knew of asbestos risks at the time Kinsman’s work was performed at the Unocal refinery in the early 1950’s. The court concluded that a finding on remand that Burke & Reynolds knew of the presence and danger of asbestos “would, under the principles articulated in the Privette line of cases and in [this] opinion, completely relieve Unocal of liability for any resultant employee injury.”

A Daily Journal article regarding the Kinsman decision states that it “clarified the court’s 1993 landmark ruling [in Privette] limiting liability for property owners who hire independent contractors.” (Liability Hurdle Remains High for Contractors: High Court Specifies What Workers Must Prove to Sue Owners, Los Angeles Daily Journal (Dec. 20, 2005), p. 1.) The article also quoted Horvitz & Levy attorney Stephen Norris, who argued the case in the California Supreme Court, as stating that the decision is “a victory for his client,” which on remand will “show that surveys from the 1930s and 1940s indicated there was no significant risk to workers such as Kinsman.” (Id. at p. 5.)

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