California Civil Jury Instructions (CACI)

3707. Special Employment - Joint Responsibility

If you decide that [name of worker] was the temporary employee of [name of defendant second employer], but that [name of defendant first employer] partially controlled [name of worker]'s activities along with [name of defendant second employer], then you must conclude that both [name of defendant first employer] and [name of defendant second employer] are responsible for the conduct of [name of worker].

Sources and Authority

"Facts demonstrating the existence of a special employment relationship do not necessarily preclude a finding that a particular employee also remained under the partial control of the original employer. Where general and special employers share control of an employee's work, a 'dual employment' arises, and the general employer remains concurrently and simultaneously, jointly and severally liable for the employee's torts." (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 494-495 [162 Cal.Rptr. 320, 606 P.2d 355], internal citations omitted.)

"This is especially true where the loaned employee performs work of interest to both the general and special employers." (Societa per Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 460 [183 Cal.Rptr. 51, 645 P.2d 102], internal citation omitted.) If the loaned employee performs work of interest to both the general and special employers, "there is a presumption that the [employee] remained in his general employment. (Ibid.) The [general employer] can avoid liability only if it can [prove] that it gave up . . . 'authoritative direction and control' [over the employee]." (Ibid.)

" 'Authoritative direction and control' is more than the power to suggest details or the necessary cooperation." (Societa per Azioni de Navigazione Italia, supra, 31 Cal.3d at p. 460, internal citations omitted.)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 118-121

1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[2][e] (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, § 3:7

(New September 2003)