California Civil Jury Instructions (CACI)

3713. Nondelegable Duty

[Insert name, popular name, or number of regulation, statute, or ordinance] states:

[Insert requirements of regulation, statute, or ordinance.]

If [name of plaintiff] proves that [name of independent contractor] did not comply with this law, then [name of defendant] is responsible for any harm caused by this failure unless [name of defendant] proves both of the following:

1. That [he/she/it] did what would be expected of a reasonably careful person acting under similar circumstances who wanted to comply with this law; and

2. That the failure to comply with this law was not due to [name of independent contractor]'s negligence.

Sources and Authority

"A nondelegable duty is a definite affirmative duty the law imposes on one by reason of his or her relationship with others. One cannot escape this duty by entrusting it to an independent contractor." (Felmlee v. Falcon Cable Co. (1995) 36 Cal.App.4th 1032, 1036 [43 Cal.Rptr.2d 158], internal citation omitted.)

"The law has long recognized one party may owe a duty to another which, for public policy reasons, cannot be delegated. Such nondelegable duties derive from statutes, contracts, and common law precedents. Courts have held a party owing such a duty cannot escape liability for its breach simply by hiring an independent contractor to perform it." (Barry v. Raskov (1991) 232 Cal.App.3d 447, 455 [283 Cal.Rptr.2d 463], internal citations omitted.)

"The rationale of the nondelegable duty rule is 'to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm[.]' The 'recognition of nondelegable duties tends to insure that there will be a financially responsible defendant available to compensate for the negligent harms caused by that defendant's activity[.]' Thus, the nondelegable duty rule advances the same purposes as other forms of vicarious liability." (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 727 [28 Cal.Rptr.2d 672], internal citations and footnote omitted.)

Felmlee noted "[n]ondelegable duties may arise when a statute provides specific safeguards or precautions to insure the safety of others[,]" but concluded that the municipal ordinance on which the plaintiff worker relied did not give rise to a nondelegable duty because it did not concern specific safeguards. (Felmlee, supra, 36 Cal.App.4th at p. 1039.)

"Unlike strict liability, a nondelegable duty operates, not as a substitute for liability based on negligence, but to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm and who may therefore properly be held liable for the negligence of his agent, whether his agent was an employee or an independent contractor." (Maloney v. Rath (1968) 69 Cal. 2d 442, 446 [71 Cal.Rptr. 897, 445 P.2d 513].)

A California public agency is subject to the imposition of a nondelegable duty in the same manner as any private individual. (Gov. Code, § 815.4; Jordy v. County of Humboldt (1992) 11 Cal.App.4th 735, 742 [14 Cal.Rptr.2d 553].)

"It is undisputable that '[t]he question of duty is . . . a legal question to be determined by the court.' " (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1184 [82 Cal.Rptr.2d 162] internal citation omitted.) "When a court finds that a defendant has a nondelegable duty as a matter of law, the instruction given by the court should specifically inform the jurors of that fact and not leave them to speculate on the subject." (Id. at p. 1187, fn. 5.)

Restatement Second of Torts, section 424, provides: "One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions."

" 'Where the law imposes a definite, affirmative duty upon one by reason of his relationship with others, whether as an owner or proprietor of land or chattels or in some other capacity, such persons can not escape liability for a failure to perform the duty thus imposed by entrusting it to an independent contractor. . . . It is immaterial whether the duty thus regarded as "nondelegable" be imposed by statute, charter or by common law.' " (Snyder v. Southern California Edison Co. (1955) 44 Cal.2d 793, 800 [285 P.2d 912], internal citation omitted.)

"[T]o establish a defense to liability for damages caused by a brake failure, the owner and operator must establish not only that ' "he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law" ' but also that the failure was not owing to the negligence of any agent, whether employee or independent contractor, employed by him to inspect or repair the brakes." (Clark v. Dziabas (1968) 69 Cal.2d 449, 451 [71 Cal.Rptr. 901, 445 P.2d 517], internal citation omitted.)

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, § 1017, p. 301

1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.05[3][d] (Matthew Bender)

2 California Employment Law, Ch. 30, Employers' Tort Liability to Third Parties for Conduct of Employees, § 30.10[2][d] (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 248, Employer's Liability for Employee's Torts, § 248.22[2][c] (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)

(New October 2004)