CACI No. 1009A. Liability to Employees of Independent Contractors for Unsafe Concealed Conditions

Judicial Council of California Civil Jury Instructions (2023 edition)

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1009A.Liability to Employees of Independent Contractors for
Unsafe Concealed Conditions
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
an unsafe concealed condition while employed by [name of plaintiff’s
employer] and working on [name of defendant]’s property. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [owned/leased/occupied/controlled] the
2. That [name of defendant] knew, or reasonably should have known,
of a preexisting unsafe concealed condition on the property;
3. That [name of plaintiff’s employer] neither knew nor could be
reasonably expected to know of the unsafe concealed condition;
4. That the condition was not part of the work that [name of
plaintiff’s employer] was hired to perform;
5. That [name of defendant] failed to warn [name of plaintiff’s
employer] of the condition;
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
An unsafe condition is concealed if either it is not visible or its
dangerous nature is not apparent to a reasonable person.
Derived from former CACI No. 1009 April 2007; Revised April 2009, December
Directions for Use
This instruction is for use if a concealed dangerous condition on property causes
injury to an employee of an independent contractor hired to perform work on the
property. For an instruction for injuries to others due to a concealed condition, see
CACI No. 1003, Unsafe Conditions. For an instruction for injuries based on the
hirers retained control over the contractors performance of work, see CACI No.
1009B, Liability to Employees of Independent Contractors for Unsafe
Conditions - Retained Control. For an instruction for injuries based on the property
owners providing defective equipment, see CACI No. 1009D, Liability to
Employees of Independent Contractors for Unsafe Conditions - Defective Equipment.
See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for instructions
on the liability of a hirer for the acts of an independent contractor.
Sources and Authority
“[T]he hirer as landowner may be independently liable to the contractors
employee, even if it does not retain control over the work, if: (1) it knows or
reasonably should know of a concealed, preexisting hazardous condition on its
premises; (2) the contractor does not know and could not reasonably ascertain
the condition; and (3) the landowner fails to warn the contractor.” (Kinsman v.
Unocal Corp. (2005) 37 Cal.4th 659, 675 [36 Cal.Rptr.3d 495, 123 P.3d 931].)
“[T]here is no reason to distinguish conceptually between premises liability
based on a hazardous substance that is concealed because it is invisible to the
contractor and known only to the landowner and premises liability based on a
hazardous substance that is visible but is known to be hazardous only to the
landowner. If the hazard is not reasonably apparent, and is known only to the
landowner, it is a concealed hazard, whether or not the substance creating the
hazard is visible.” (Kinsman, supra, 37 Cal.4th at p. 678.)
“A landowners duty generally includes a duty to inspect for concealed hazards.
But the responsibility for job safety delegated to independent contractors may
and generally does include explicitly or implicitly a limited duty to inspect the
premises as well. Therefore, . . . the landowner would not be liable when the
contractor has failed to engage in inspections of the premises implicitly or
explicitly delegated to it. Thus, for example, an employee of a roofing contractor
sent to repair a defective roof would generally not be able to sue the hirer if
injured when he fell through the same roof due to a structural defect, inasmuch
as inspection for such defects could reasonably be implied to be within the scope
of the contractors employment. On the other hand, if the same employee fell
from a ladder because the wall on which the ladder was propped collapsed,
assuming that this defect was not related to the roof under repair, the employee
may be able to sustain a suit against the hirer. Put in other terms, the contractor
was not being paid to inspect the premises generally, and therefore the duty of
general inspection could not be said to have been delegated to it. Under those
circumstances, the landowners failure to reasonably inspect the premises, when
a hidden hazard leads directly to the employee’s injury, may well result in
liability.” (Kinsman, supra, 37 Cal.4th at pp. 677-678, internal citations omitted.)
“The court also told the jury that [defendant] was liable if its negligent use or
maintenance of the property was a substantial factor in harming [plaintiff] (see
CACI Nos. 1000, 1001, 1003 & 1011). These instructions were erroneous
because they did not say that these principles would only apply to [defendant] if
the hazard was concealed.” (Alaniz v. Sun Pacific Shippers, L.P. (2020) 48
Cal.App.5th 332, 338-339 [261 Cal.Rptr.3d 702].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1259
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶¶ 6:4, 6:9.12 (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.08
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.23 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.12
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq.
(Matthew Bender)

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