California Civil Jury Instructions (CACI) (2017)

2924. Status as Defendant's Employee - Subservant Company

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2924.Status as Defendant’s Employee—Subservant Company
[Name of plaintiff] claims [he/she/[name of decedent]] was [name of
defendant]’s employee because [he/she] was employed by [name of
primary employer], a company that was controlled by [name of
defendant]. To succeed on this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] controlled or had the right to control
the daily operations of [name of primary employer];
2. That [name of defendant] controlled or had the right to control
the physical conduct of [name of primary employer]’s employees in
the course of the work during which [name of plaintiff/decedent]
was [injured/killed]; and
3. That [name of plaintiff/decedent] was performing services for the
benefit of [name of defendant] at the time of [injury/death].
New September 2003; Revised June 2011
Directions for Use
For factors that may apply to determine whether the employer has a right to
control, see CACI No. 2923, Borrowed Servant/Dual Employee. These factors are
taken from section 220 of the Restatement Second of Agency. The factors were not
included in the Restatement Third of Agency.
Sources and Authority
• “In the Kelley case, the Supreme Court recognized that if a second company
could be shown to be a conventional common-law servant, the ‘control or right
to control’ test would be met.” (Bradsher v. Missouri Pacific Railroad (8th Cir.
1982) 679 F.2d 1253, 1257–1258, internal citation omitted.)
• “To prove WFE was [defendant]’s servant, [plaintiff] must establish [defendant]
controlled or had the right to control the physical conduct of WFE’s employees
in the course of the work during which the injury allegedly occurred. The
subservant theory presupposes the existence of two separate entities in a master-
servant relationship. A plaintiff can proceed under this theory by showing his
employer was the common-law servant of the defendant railroad such that the
railroad controlled or had the right to control the employer’s daily operations. A
plaintiff must also show he was ‘employed to perform services in the affairs of
[the defendant railroad] and . . . with respect to the physical conduct in the
performance of the services [was] subject to [that railroad’s] control or right to
control.’ For [plaintiff] to succeed under the subservant theory, he must show
[defendant] controlled or had the right to control his physical conduct on the
job. It is not enough for him to merely show WFE was the railroad’s agent, or
that he was acting to fulfill the railroad’s obligations; [defendant]’s generalized
oversight of [plaintiff], without physical control or the right to exercise physical
control of his daily work is insufficient.” (Schmidt v. Burlington Northern &
Santa Fe Ry. (9th Cir. 2010) 605 F.3d 686, 689–690, internal citations omitted.)
• “Where the evidence of control is in dispute, the case should go to the jury.”
(Vanskike v. ACF Industries, Inc. (8th Cir. 1981) 665 F.2d 188, 198, internal
citations omitted.)
• “In this case . . . the evidence of contacts between Southern Pacific employees
and PMT employees may indicate, not direction or control, but rather the
passing of information and the accommodation that is obviously required in a
large and necessarily coordinated operation. The informal contacts between the
two groups must assume a supervisory character before the PMT employees can
be deemed pro hac vice employees of the railroad.” (Kelley v. Southern Pacific
Co. (1974) 419 U.S. 318, 330 [95 S.Ct. 472, 42 L.Ed.2d 498].)
• Restatement Second of Agency, section 220(1), defines a servant as “a person
employed to perform services in the affairs of another and who with respect to
the physical conduct in the performance of the services is subject to the other’s
control or right to control.” Section 220(2) lists various factors that are helpful
in applying this definition:
(a) the extent of control which, by the agreement, the master may exercise
over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or
(c) the kind of occupation, with reference to whether, in the locality, the
work is usually done under the direction of the employer or by a
specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities,
tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the
(i) whether or not the parties believe they are creating the relation of master
and servant; and
(j) whether the principal is or is not in business.
• “While [section 220] is directed primarily at determining whether a particular
bilateral arrangement is properly characterized as a master-servant or
independent contractor relationship, it can also be instructive in analyzing the
three-party relationship between two employers and a worker.” (Kelley v.
CACI No. 2924 FELA
Southern Pacific Co. (1974) 419 U.S. 318, 324 [95 S.Ct. 472, 42 L.Ed.2d 498].)
• “In 2006 the Restatement (Second) of Agency was superseded by the
Restatement (Third) of Agency, which uses ‘employer’ and ‘employee’ rather
than ‘master’ and ‘servant,’ Restatement (Third) of Agency, § 2.04, comment a,
and defines an employee simply as a type of agent subject to a principal’s
control. Id., § 7.07(3)(a).” (Schmidt,supra, 605 F.3d at p. 690, fn. 3.)
Secondary Sources
2 Witkin, Summary of California Law (10th ed. 2005) Workers’ Compensation,
42 California Forms of Pleading and Practice, Ch. 485, Railroads, § 485.33
(Matthew Bender)
FELA CACI No. 2924