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

Judicial Council of California Civil Jury Instructions (2017 edition)

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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
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
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)
1009C. Reserved for Future Use

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