California Civil Jury Instructions (CACI)
3708. Peculiar-Risk Doctrine
[Name of plaintiff] claims that even if [name of independent contractor] was not an employee, [name of defendant] is responsible for [name of independent contractor]'s conduct because the work involved a special risk of harm.
A special risk of harm is a recognizable danger that arises out of the nature of the work or the place where it is done and requires specific safety measures appropriate to the danger. A special risk of harm may also arise out of a planned but unsafe method of doing the work. A special risk of harm does not include a risk that is unusual, abnormal, or not related to the normal or expected risks associated with the work.
To establish this claim, [name of plaintiff] must prove each of the following:
1. That the work was likely to involve a special risk of harm to others;
2. That [name of defendant] knew or should have known that the work was likely to involve this risk;
3. That [name of independent contractor] failed to use reasonable care to take specific safety measures appropriate to the danger to avoid this risk; and
4. That [name of independent contractor]'s failure was a cause of harm to [name of plaintiff].
[In deciding whether [name of defendant] should have known the risk, you should consider [his/her/its] knowledge and experience in the field of work to be done.]
Sources and Authority
In determining the applicability of the doctrine of peculiar risk, a critical inquiry "is whether the work for which the contractor was hired involves a risk that is 'peculiar to the work to be done,' arising either from the nature or the location of the work and ' "against which a reasonable person would recognize the necessity of taking special recautions." ' " (Privette v. Superior Court (1993) 5 Cal.4th 689, 695 [21 Cal.Rptr.2d 72, 854 P.2d 721], internal citations omitted.)
"Whether the particular work which the independent contractor has been hired to perform is likely to create a peculiar risk of harm to others unless special precautions are taken is ordinarily a question of fact." (Castro v. State of California (1981) 114 Cal.App.3d 503, 511 [170 Cal.Rptr. 734], internal citations omitted.)
The doctrine ensures that an injured person will have a source of recovery even if the independent contractor is insolvent. (Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 258 [74 Cal.Rptr.2d 878, 955 P.2d 504].)
"The analysis of the applicability of the peculiar risk doctrine to a particular fact situation can be broken down into two elements: (1) whether the work is likely to create a peculiar risk of harm unless special precautions are taken; and (2) whether the employer should have recognized that the work was likely to create such a risk." (Jimenez v. Pacific Western Construction Co. (1986) 185 Cal.App.3d 102, 110 [229 Cal.Rptr. 575].)
Restatement Second of Torts, section 413, states: "One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer (a) fails to provide in the contract that the contractor shall take such precautions, or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions."
Restatement Second of Torts, section 416, states: "One who employs an independent contractor to do work which the employer should recognize as necessarily likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise."
California courts have adopted the doctrine as expressed in these Restatement sections. (Castro, supra, 114 Cal.App.3d at p. 510.)
Restatement Second of Torts, section 413, has been referred to as "direct" liability, while section 416 has been referred to as "vicarious."
However, the Supreme Court has observed that "this distinction is misleading." The court also observed that these two sections overlap and are somewhat redundant because, under either section, the hiring person is subject to liability for injuries to others resulting from the contractor's negligence. (Toland, supra, 18 Cal.4th at pp. 264-265.)
"A peculiar risk may arise out of a contemplated and unsafe method of work adopted by the independent contractor." (Mackey v. Campbell Construction Co. (1980) 101 Cal.App.3d 774, 785-786 [162 Cal.Rptr. 64].)
"The term 'peculiar risk' means neither a risk that is abnormal to the type of work done, nor a risk that is abnormally great; it simply means 'a special, recognizable danger arising out of the work itself.' For that reason, as this court has pointed out, the term 'special risk' is probably a more accurate description than 'peculiar risk,' which is the terminology used in the Restatement." (Privette, supra, 5 Cal.4th at p. 695, internal citations omitted.)
"Even when work performed by an independent contractor poses a special or peculiar risk of harm, . . . the person who hired the contractor will not be liable for injury to others if the injury results from the contractor's 'collateral' or 'casual' negligence." (Privette, supra, 5 Cal.4th at p. 696.)
Whether or not a risk is a "peculiar risk" may be decided as a matter of law. (Jimenez, supra, 185 Cal.App.3d at p. 111.) In that case, the jury would decide only whether the independent contractor "failed to exercise reasonable care to take the necessary special precautions." (Id. at p. 108.)
The Supreme Court has described "collateral" or "casual" negligence as follows: " 'Casual' or 'collateral' negligence has sometimes been described as negligence in the operative detail of the work, as distinguished from the general plan or method to be followed. Although this distinction can frequently be made, since negligence in the operative details will often not be within the contemplation of the employer when the contract is made, the distinction is not essentially one between operative detail and general method. 'It is rather one of negligence which is unusual or abnormal, or foreign to the normal or contemplated risks of doing the work, as distinguished from negligence which creates only the normal or contemplated risk.' " (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 510 [156 Cal.Rptr. 41, 595 P.2d 619], overruled on other grounds in Privette, supra, 5 Cal.4th at p. 702, fn. 4.)
The question of whether the harm resulted from collateral or casual negligence is to be resolved by the trier of fact. (Caudel v. East Bay Municipal Utility Dist. (1985) 165 Cal.App.3d 1, 7-9 [211 Cal.Rptr. 222].)
6 Witkin, Summary of California Law (9th ed. 1988) Torts, §§ 1013-1016
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.05[b] (Matthew Bender)
2 California Employment Law, Ch. 30, Employers' Tort Liability to Third Parties for Conduct of Employees, § 30.10[b] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer's Liability for Employee's Torts, § 248.22 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)
1 Bancroft-Whitney's California Civil Practice (1992) Torts, § 3:22
(New September 2003)