California Civil Jury Instructions (CACI) (2017)

3713. Nondelegable Duty

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3713.Nondelegable Duty
[Name of defendant] has a duty that cannot be delegated to another
person arising from [insert name, popular name, or number of regulation,
statute, or ordinance/a contract between the parties/other, e.g., the
landlord-tenant relationship]. Under this duty,
[insert requirements of regulation, statute, or ordinance or otherwise
describe duty].
[Name of plaintiff] claims that [he/she] was harmed by the conduct of
[name of independent contractor] and that [name of defendant] is
responsible for this harm. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] hired [name of independent contractor] to
[describe job involving nondelegable duty, e.g., repair the roof];
2. That [name of independent contractor] [specify wrongful conduct in
breach of duty, e.g., did not comply with this law];
3. That [name of plaintiff] was harmed; and
4. That [name of independent contractor]’s conduct was a substantial
factor in causing [name of plaintiff]’s harm.
New October 2004; Revised June 2010
Directions for Use
Use this instruction with regard to the liability of the hirer for the torts of an
independent contractor if a nondelegable duty is imposed on the hirer by statute,
regulation, ordinance, contract, or common law. (See Barry v. Raskov (1991) 232
Cal.App.3d 447, 455 [283 Cal.Rptr. 463].)
Sources and Authority
• “As a general rule, a hirer of an independent contractor is not liable for
physical harm caused to others by the act or omission of the independent
contractor. There are multiple exceptions to the rule, however, one being the
doctrine of nondelegable duties . . . . ‘ “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.” A nondelegable duty may arise when a statute or regulation requires
specific safeguards or precautions to ensure others’ safety. [Citation.] . . .’ ”
(J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 400 [99
Cal.Rptr.3d 5], internal citations omitted.)
• “Nondelegable duties ‘derive from statutes [,] contracts, and common law
precedents.’ They ‘do not rest upon any personal negligence of the employer.
They are rules of vicarious liability, making the employer liable for the
negligence of the independent contractor, irrespective of whether the employer
has himself been at fault. They arise in situations in which, for reasons of
policy, the employer is not permitted to shift the responsibility for the proper
conduct of the work to the contractor. The liability imposed is closely
analogous to that of a master for the negligence of his servant. [¶] The
statement commonly made in such cases is that the employer is under a duty
which he is not free to delegate to the contractor. Such a “non-delegable duty”
requires the person upon whom it is imposed to answer for it that care is
exercised by anyone, even though he be an independent contractor, to whom the
performance of the duty is entrusted.’ ” (Bowman v. Wyatt (2010) 186
Cal.App.4th 286, 316 [111 Cal.Rptr.3d 787], 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
• “Simply stated, ‘ “[t]he duty which a possessor of land owes to others to put
and maintain it in reasonably safe condition is nondelegable. If an independent
contractor, no matter how carefully selected, is employed to perform it, the
possessor is answerable for harm caused by the negligent failure of his
contractor to put or maintain the buildings and structures in reasonably safe
condition[.]” ’ ” (Srithong, supra, 23 Cal.App.4th at p. 726.)
• “Nondelegable duties may arise when a statute provides specific safeguards or
precautions to insure the safety of others.” (Felmlee v. Falcon Cable Co. (1995)
36 Cal.App.4th 1032, 1039 [43 Cal.Rptr.2d 158].)
• “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.)
• “ ‘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 (10th ed. 2005) Torts, § 1247
1Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.05[3][d] (Matthew
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)
10 California Points and Authorities, Ch. 100A, Employer and Employee:
Respondeat Superior, § 100A.42 (Matthew Bender)
3714–3719. Reserved for Future Use