California Civil Jury Instructions (CACI) (2017)

3707. Special Employment - Joint Responsibility

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3707.Special Employment—Joint Responsibility
If you decide that [name of worker] was the special employee of [name of
defendant borrowing employer], but that [name of defendant lending
employer] partially controlled [name of worker]’s activities along with
[name of defendant borrowing employer], then you must conclude that
both [name of defendant lending employer] and [name of defendant
borrowing employer] are responsible for the conduct of [name of worker].
New September 2003; Revised December 2016
Directions for Use
Give this instruction with CACI No. 3706, Special Employment—Lending Employer
Denies Responsibility for Worker’s Acts, if the jury will be given the option of
deciding that both the lending employer and the borrowing employer should be
treated as the worker’s employer with regard to the claim at issue.
Sources and Authority
• “ ‘ “Where an employer sends an employee to do work for another person, and
both have the right to exercise certain powers of control over the employee, that
employee may be held to have two employers—his original or ‘general’
employer and a second, the ‘special’ employer.” ’ A general employer is
absolved of respondeat superior liability when it has relinquished total control
to the special employer. During this period of transferred control, the special
employer becomes solely liable under the doctrine of respondeat superior for
the employee’s job-related torts.” (Montague v. AMN Healthcare, Inc. (2014)
223 Cal.App.4th 1515, 1520 [168 Cal.Rptr.3d 123], internal citations omitted.)
• “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
• “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
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 169–172
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[2][e] (Matthew
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation,
§ 577.22 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive
Remedy Doctrine, § 239.28 (Matthew Bender)
1 California Civil Practice: Torts §§ 3:26–3:27 (Thomson Reuters)