California Civil Jury Instructions (CACI)

1009B. Liability to Employees of Independent Contractors for Unsafe Conditions—Retained Control

[Name of plaintiff] claims that [he/she] was harmed by an unsafe 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 property;

2. That [name of defendant] retained control over safety conditions at the worksite;

3. That [name of defendant] negligently exercised [his/her/its] retained control over safety conditions by [specify alleged negligent acts or omissions];

4. That [name of plaintiff] was harmed; and

5. That [name of defendant]’s negligent exercise of [his/her/its] retained control over safety conditions was a substantial factor in causing [name of plaintiff]’s harm.

Derived from former CACI No. 1009 April 2007; Revised April 2009, December 2010, December 2011

Directions for Use

This instruction is for use if a dangerous condition on property causes injury to an employee of an independent contractor hired to perform work on the property. The basis of liability is that the defendant retained control over the safety conditions at the worksite. 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 unsafe conditions not discoverable by the plaintiff’s employer, see CACI No. 1009A, Liability to Employees of Independent Contractors for Unsafe Concealed Conditions. For an instruction for injuries based on the property owner’s 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.

The hirer’s retained control must have “affirmatively contributed” to the plaintiff’s injury. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 [115 Cal.Rptr.2d 853, 38 P.3d 1081].) However, the affirmative contribution need not be active conduct but may be in the form of an omission to act. (Id. at p. 212, fn. 3.) The advisory committee believes that the “affirmative contribution” requirement

PREMISES LIABILITY CACI No. 1009B simply means that there must be causation between the hirer’s conduct and the plaintiff’s injury. Because “affirmative contribution” might be construed by a jury to require active conduct rather than a failure to act, the committee believes that its standard “substantial factor” element adequately expresses the “affirmative contribution” requirement.

Sources and Authority

  • “We conclude that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affırmatively contributed to the employee’s injuries.” (Hooker, supra, 27 Cal.4th at p. 202, original italics.)
  • “Imposing tort liability on a hirer of an independent contractor when the hirer’s conduct has affirmatively contributed to the injuries of the contractor’s employee is consistent with the rationale of our decisions in Privette, Toland and Camargo because the liability of the hirer in such a case is not ‘ “in essence ‘vicarious’ or ‘derivative’ in the sense that it derives from the ‘act or omission’ of the hired contractor.” ’ To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term.” (Hooker, supra, 27 Cal.4th at pp. 211–212, original italics, internal citations and footnote omitted.)
  • “Such affirmative contribution need not always be in the form of actively directing a contractor or contractor’s employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.” (Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)
  • “If a hirer entrusts work to an independent contractor, but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.” (Tverberg v. Fillner Constr., Inc. (2012) 202 Cal.App.4th 1439, 1446 [136 Cal.Rptr.3d 521].)
  • “When the employer directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee’s injury. [¶] By contrast, passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. Thus, the failure to exercise retained control does not constitute an affirmative contribution to an injury. Such affirmative contribution must be based on a negligent exercise of control. In order for a worker to recover on a retained control theory, the hirer must engage in some active participation.” (Tverberg, supra, 202 Cal.App.4th at p. 1446, internal citations omitted.)
  • “[U]nder Government Code section 815.4, a public entity can be held liable under the retained control doctrine, provided a private person would be liable under the same circumstances. This means that the public entity must negligently exercise its retained control so as to affirmatively contribute to the injuries of the employee of the independent contractor.” (McCarty v. Department of Transportation (2008) 164 Cal.App.4th 955, 985 [79 Cal.Rptr.3d 777], original italics.)
  • Section 414 of the Restatement Second of Torts provides: “One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1117

Friedman, et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For Defective Conditions On Premises, ¶ 6:1 et seq. (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)