CACI No. 1009B. Liability to Employees of Independent Contractors for Unsafe Conditions - Retained Control

Judicial Council of California Civil Jury Instructions (2020 edition)

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1009B.Liability to Employees of Independent Contractors for
Unsafe Conditions - Retained Control
[Name of plaintiff] claims that [he/she/nonbinary pronoun] 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/nonbinary
pronoun/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/nonbinary
pronoun/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, May 2017
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 a failure to act. (Id. at p. 212, fn. 3.) “Affirmative
contribution” means that there must be causation between the hirer’s retained
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control and the plaintiff’s injury. But “affirmative contribution” might be construed
by a jury to require active conduct rather than a failure to act. Element 5, the
standard “substantial factor” element, expresses the “affirmative contribution.”
requirement. (See Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 594-595 [207
Cal.Rptr.3d 712] [agreeing with committee’s position that “affirmatively contributed”
need not be specifically stated in instruction].)
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].)
• “A hirer’s failure to correct an unsafe condition, by itself, does not establish an
affirmative contribution.” (Khosh v. Staples Construction Co., Inc. (2016) 4
Cal.App.5th 712, 718 [208 Cal.Rptr.3d 699].)
• “Although drawn directly from case law, [plaintiff]’s proposed Special
Instructions Nos. 2 and 8 are somewhat misleading in that they suggest that in
order for the hirer to ‘affirmatively contribute’ to the plaintiff’s injuries, the hirer
must have engaged in some form of active direction or conduct. However,
‘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.’ The Advisory Committee on Civil Jury Instructions
recognized the potential to confuse the jury by including ‘affirmative
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contribution’ language in CACI No. 1009B. The committee’s Directions for Use
states: ‘The hirer’s retained control must have “affirmatively contributed” to the
plaintiff’s injury. [Citation.] However, the affirmative contribution need not be
active conduct but may be in the form of an omission to act. [Citation.] The
advisory committee believes that the “affirmative contribution” requirement
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.’ (Directions for Use for CACI No. 1009B.) [¶] We
agree with the Advisory Committee on Civil Jury Instructions that CACI No.
1009B adequately covers the ‘affirmative contribution’ requirement set forth in
Hooker.” (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 594-595 [207
Cal.Rptr.3d 712].)
• “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.)
• “Although plaintiffs concede that [contractor] had exclusive control over how the
window washing would be done, they urge that [owner] nonetheless is liable
because it affirmatively contributed to decedent’s injuries ‘not [by] active
conduct but ...in the form of an omission to act.’ Although it is undeniable
that [owner]’s failure to equip its building with roof anchors contributed to
decedent’s death, McKown [v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219] does
not support plaintiffs’ suggestion that a passive omission of this type is
actionable. . . . Subsequent Supreme Court decisions . . . have repeatedly
rejected the suggestion that the passive provision of an unsafe workplace is
actionable. . . . Accordingly, the failure to provide safety equipment does not
constitute an ‘affirmative contribution’ to an injury within the meaning of
McKown.” (Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078,
1093 [229 Cal.Rptr.3d 594], original italics.)
• “[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
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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.)
• “The Privette line of decisions establishes a presumption that an independent
contractor’s hirer ‘delegates to that contractor its tort law duty to provide a safe
workplace for the contractor’s employees.’ . . . [T]he Privette presumption
affects the burden of producing evidence.” (Alvarez v. Seaside Transportation
Services LLC (2017) 13 Cal.App.5th 635, 642 [221 Cal.Rptr.3d 119], internal
citations omitted.)
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)
1009C. Reserved for Future Use
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