CACI No. 3707. Special Employment - Joint Responsibility

Judicial Council of California Civil Jury Instructions (2020 edition)

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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 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
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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
Bender)
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)
CACI No. 3707 VICARIOUS RESPONSIBILITY
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