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

Judicial Council of California Civil Jury Instructions (2023 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 contractor] and working
on [specify nature of work that defendant hired the contractor to perform].
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] retained some control over [name of
contractor]’s manner of performance of [specify nature of
contracted work];
2. That [name of defendant] actually exercised [his/her/nonbinary
pronoun/its] retained control over that work by [specify alleged
negligence of defendant];
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s negligent exercise of [his/her/nonbinary
pronoun/its] retained control affirmatively contributed to [name of
plaintiff]’s harm.
Derived from former CACI No. 1009 April 2007; Revised April 2009, December
2010, December 2011, May 2017, May 2022
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 manner of
performance of some part of the work entrusted to the contractor. (Sandoval v.
Qualcomm Inc. (2021) 12 Cal.5th 256, 273 [283 Cal.Rptr.3d 519, 494 P.3d 487].)
Both retaining control and actually exercising control over some aspect of the work
is required because hirers who fully and effectively delegate work to a contractor
owe no tort duty to that contractors workers. (See id.) If there is a question of fact
regarding whether the defendant entrusted the work to the contractor, the instruction
should be modified. 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 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.
The hirers exercise of 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]; see Sandoval, supra, 12 Cal.5th at p. 277.)
However, the affirmative contribution need not be active conduct but may be a
failure to act. (Hooker, supra, 27 Cal.4th at p. 212, fn. 3; see Sandoval, supra, 12
Cal.5th at p. 277.) “Affirmative contribution” means that there must be causation
between the hirers exercising retained control and the plaintiff’s injury. Modification
may be required if the defendant’s failure to act is alleged pursuant to Hooker.
Sources and Authority
“A hirer ‘retains control’ where it retains a sufficient degree of authority over the
manner of performance of the work entrusted to the contractor. . . . So ‘retained
control’ refers specifically to a hirers authority over work entrusted to the
contractor, i.e., work the contractor has agreed to perform. For simplicity we will
often call this the ‘contracted work’ - irrespective of whether it’s set out in a
written contract or arises from an informal agreement. A hirers authority over
noncontract work - although potentially giving rise to other tort duties - thus
does not give rise to a retained control duty unless it has the effect of creating
authority over the contracted work.” (Sandoval, supra, 12 Cal.5th at pp.
“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 hirers 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 hirers
conduct has affirmatively contributed to the injuries of the contractors 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.)
“Contract workers must prove that the hirer both retained control and actually
exercised that retained control in such a way as to affirmatively contribute to the
injury.” (Sandoval, supra, 12 Cal.5th at p. 276, original italics.)
“Such affirmative contribution need not always be in the form of actively
directing a contractor or contractors 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 hirers 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.)
‘Affirmative contribution’ means that the hirers exercise of retained control
contributes to the injury in a way that isn’t merely derivative of the contractor’s
contribution to the injury. Where the contractors conduct is the immediate cause
of injury, the affirmative contribution requirement can be satisfied only if the
hirer in some respect induced - not just failed to prevent - the contractors
injury-causing conduct.” (Sandoval, supra, 12 Cal.5th at p. 277, internal citation
“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]ffirmative contribution is a different sort of inquiry than substantial factor
causation. For instance, a fact finder might reasonably conclude that a hirers
negligent hiring of the contractor was a substantial factor in bringing about a
contract workers injury, and yet negligent hiring is not affirmative contribution
because the hirers liability is essentially derivative of the contractors conduct.
Conversely, affirmative contribution does not itself require that the hirers
contribution to the injury be substantial.” (Sandoval, supra, 12 Cal.5th at p. 278,
internal citations omitted.)
“A hirers 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].)
“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 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
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
“The Privette line of decisions establishes a presumption that an independent
contractors hirer ‘delegates to that contractor its tort law duty to provide a safe
workplace for the contractors 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 (11th ed. 2017) Torts, § 1259
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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