CACI 1009A Liability to Employees of Independent Contractors for Unsafe Concealed Conditions

California Civil Jury Instructions CACI

1009A Liability to Employees of Independent Contractors for Unsafe Concealed Conditions

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by an unsafe concealed condition while employed by [name of plaintiff’s employer] and working on [name of defendant]’s property. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] [owned/leased/occupied/controlled] the property;

2.That [name of defendant] knew, or reasonably should have known, of a preexisting unsafe concealed condition on the property;

3.That [name of plaintiff’s employer] neither knew nor could be reasonably expected to know of the unsafe concealed condition;

4.That the condition was not part of the work that [name of plaintiff’s employer] was hired to perform;

5.That [name of defendant] failed to warn [name of plaintiff’s employer] of the condition;

6.That [name of plaintiff] was harmed; and

7.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

An unsafe condition is concealed if either it is not visible or its dangerous nature is not apparent to a reasonable person.

Derived from former CACI No. 1009 April 2007; Revised April 2009, December 2011

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Directions for Use

This instruction is for use if a concealed dangerous condition on property causes injury to an employee of an independent contractor hired to perform work on the property. For an instruction for injuries to others due to a concealed condition, see CACI No. 1003, Unsafe Conditions. For an instruction for injuries based on the owner’s retained control, see CACI No. 1009B, Liability to Employees of Independent Contractors for Unsafe Conditions—Retained Control. For an instruction for injuries based on the property owner’s providing defective equipment, see CACI No. 1009D, Liability to Employees of Independent Contractors for Unsafe Conditions—Defective Equipment.

See also the Vicarious Responsibility Series, CACI No. 3700 et seq., for instructions on the liability of a hirer for the acts of an independent contractor.

Sources and Authority

“[T]he hirer as landowner may be independently liable to the contractor’s employee, even if it does not retain control over the work, if: (1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675 [36 Cal.Rptr.3d 495, 123 P.3d 931].)

“[T]here is no reason to distinguish conceptually between premises liability based on a hazardous substance that is concealed because it is invisible to the contractor and known only to the landowner and premises liability based on a hazardous substance that is visible but is known to be hazardous only to the landowner. If the hazard is not reasonably apparent, and is known only to the landowner, it is a concealed hazard, whether or not the substance creating the hazard is visible.” (Kinsman, supra, 37 Cal.4th at p. 678.)

“A landowner’s duty generally includes a duty to inspect for concealed hazards. But the responsibility for job safety delegated to independent contractors may and generally does include explicitly or implicitly a limited duty to inspect the premises as well. Therefore, … the landowner would not be liable when the contractor has failed to engage in inspections of the premises implicitly or explicitly delegated to it. Thus, for example, an employee of a roofing contractor sent to repair a defective roof would generally not be able to sue the hirer if injured when he fell through the same roof due to a structural defect, inasmuch as inspection for such defects could reasonably be implied to be within the scope of the contractor’s employment. On the other hand, if the same employee fell from a ladder because the wall on which the ladder was propped collapsed, assuming that this defect was not related to the roof under repair, the employee may be able to sustain a suit against the hirer. Put in other terms, the contractor was not being paid to inspect the premises generally, and therefore the duty of general inspection could not be said to have been delegated to it. Under those circumstances, the landowner’s failure to reasonably inspect the premises, when a hidden hazard leads directly to the employee’s injury, may well result in liability.” (Kinsman, supra, 37 Cal.4th at pp. 677–678, internal citations omitted.)

“The court also told the jury that [defendant] was liable if its negligent use or maintenance of the property was a substantial factor in harming [plaintiff] (see CACI Nos. 1000, 1001, 1003 & 1011). These instructions were erroneous because they did not say that these principles would only apply to [defendant] if the hazard was concealed.” (Alaniz v. Sun Pacific Shippers, L.P. (2020) 48 Cal.App.5th 332, 338–339 [261 Cal.Rptr.3d 702].)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1259
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For Defective Conditions On Premises, ¶¶ 6:4, 6:9.12 (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.08 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property Owners, § 381.23 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.12 (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.20 et seq. (Matthew Bender)