California Civil Jury Instructions (CACI) (2017)

3708. Peculiar-Risk Doctrine

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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.]
New September 2003
Sources and Authority
• “The doctrine of peculiar risk is an exception to the common law rule that a
hirer was not liable for the torts of an independent contractor. Under this
doctrine, ‘a person who hires an independent contractor to perform work that is
inherently dangerous can be held liable for tort damages when the contractor’s
negligent performance of the work causes injuries to others. By imposing such
liability without fault on the person who hires the independent contractor, the
doctrine seeks to ensure that injuries caused by inherently dangerous work will
be compensated, that the person for whose benefit the contracted work is done
bears responsibility for any risks of injury to others, and that adequate
safeguards are taken to prevent such injuries.’ This doctrine of peculiar risk thus
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represents a limitation on the common law rule and a corresponding expansion
of hirer vicarious liability.” (Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638,
646–647 [182 Cal.Rptr.3d 803], internal citation omitted.)
• 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 precautions.” ’ ” (Privette v. Superior Court
(1993) 5 Cal.4th 689, 695 [21 Cal.Rptr.2d 72, 854 P.2d 721], internal citations
omitted.)
• “The courts created this exception in the late 19th century to ensure that
innocent third parties injured by inherently dangerous work performed by an
independent contractor for the benefit of the hiring person could sue not only
the contractor, but also the hiring person, so that in the event of the contractor’s
insolvency, the injured person would still have a source of recovery.” (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].)
• “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; but see Jimenez,supra, 185 Cal.App.3d at pp. 109–111
[proper in this case for trial court to find peculiar risk as a matter of law].)
• “[T]he hiring person’s liability is cast in the form of the hiring person’s breach
of a duty to see to it that special precautions are taken to prevent injuries to
others; in that sense, the liability is ‘direct.’ Yet, peculiar risk liability is not a
traditional theory of direct liability for the risks created by one’s own conduct:
Liability . . . is in essence ‘vicarious’ or ‘derivative’ in the sense that it derives
from the ‘act or omission’ of the hired contractor, because it is the hired
contractor who has caused the injury by failing to use reasonable care in
performing the work . . . . ‘The conclusion that peculiar risk is a form of
vicarious liability is unaffected by the characterization of the doctrine as
“direct” liability in situations when the person hiring an independent contractor
‘fails to provide in the contract that the contractor shall take [special]
precautions.’ ”(Toland, supra, 18 Cal.4th at p. 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.
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(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.)
• “ ‘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.)
• “[T]he question is whether appellant’s alleged injuries resulted from negligence
which was unusual or abnormal, creating a new risk not inherent in the work
itself or in the ordinary or prescribed way of doing it, and not reasonably
foreseeable by respondent; or whether the injuries were caused by normal
negligence which precipitated a contemplated special risk of harm which was
itself ‘peculiar to the work to be done, and arising out of its character, or out of
the place where it is to be done, against which a reasonable man would
recognize the necessity of taking special precautions.’ This question, like the
broader issue of whether there was a peculiar risk inherent in the work being
performed, is a question of fact to be resolved by the trier of fact.” (Caudel v.
East Bay Municipal Utility Dist. (1985) 165 Cal.App.3d 1, 9 [211 Cal.Rptr.
222].)
• “[T]he dispositive issue for purposes of applying the peculiar risk doctrine to
the present case is whether there was a direct relationship between the accident
and the ‘particular work performed’ by [contractor]. In other words, if the
‘character’ of the work contributed to the accident, the peculiar risk doctrine
applies. If the accident resulted from ‘ordinary’ use of the vehicle, the peculiar
risk doctrine does not apply, notwithstanding the vehicle’s size and weight.”
(Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 309 [111 Cal.Rptr.3d 787],
internal citation omitted.)
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Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1242–1244
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.05[3][b] (Matthew
Bender)
2 California Employment Law, Ch. 30, Employers’ Tort Liability to Third Parties
for Conduct of Employees, § 30.10[2][b] (Matthew Bender)
21 California Forms of Pleading and Practice, Ch. 248, Employer’s Liability for
Employee’s Torts, §§ 248.22, 248.32[3] (Matthew Bender)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.41 et seq. (Matthew Bender)
1 California Civil Practice: Torts, § 3:22 (Thomson Reuters)
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