CACI 1009B Liability to Employees of Independent Contractors for Unsafe Conditions—Retained Control
California Civil Jury Instructions CACI
1009B Liability to Employees of Independent Contractors for Unsafe Conditions—Retained Control
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by an unsafe 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] retained control over safety conditions at the worksite;
3.That [name of defendant] negligently exercised [his/her/nonbinary pronoun/its] retained control over safety conditions by [specify alleged negligent acts or omissions];
4.That [name of plaintiff] was harmed; and
5.That [name of defendant]’s negligent exercise of [his/her/nonbinary pronoun/its] retained control over safety conditions was a substantial factor in causing [name of plaintiff]’s harm.
Derived from former CACI No. 1009 April 2007; Revised April 2009, December 2010, December 2011, May 2017
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Directions for Use
This instruction is for use if a dangerous condition on property causes injury to an employee of an independent contractor hired to perform work on the property. The basis of liability is that the defendant retained control over the safety conditions at the worksite. 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 unsafe conditions not discoverable by the plaintiff’s employer, see CACI No. 1009A, Liability to Employees of Independent Contractors for Unsafe Concealed Conditions. 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.
The hirer’s retained control must have “affirmatively contributed” to the plaintiff’s injury. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 [115 Cal.Rptr.2d 853, 38 P.3d 1081].) However, the affirmative contribution need not be active conduct but may be a failure to act. (Id. at p. 212, fn. 3.) “Affirmative contribution” means that there must be causation between the hirer’s retained control and the plaintiff’s injury. But “affirmative contribution” might be construed by a jury to require active conduct rather than a failure to act. Element 5, the standard “substantial factor” element, expresses the “affirmative contribution.” requirement. (See Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 594–595 [207 Cal.Rptr.3d 712] [agreeing with committee’s position that “affirmatively contributed” need not be specifically stated in instruction].)
Sources and Authority
•“We conclude that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.” (Hooker, supra, 27 Cal.4th at p. 202, original italics.)
•“Imposing tort liability on a hirer of an independent contractor when the hirer’s conduct has affirmatively contributed to the injuries of the contractor’s employee is consistent with the rationale of our decisions in Privette, Toland and Camargo because the liability of the hirer in such a case is not ‘ “in essence ‘vicarious’ or ‘derivative’ in the sense that it derives from the ‘act or omission’ of the hired contractor.” ’ To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term.” (Hooker, supra, 27 Cal.4th at pp. 211–212, original italics, internal citations and footnote omitted.)
•“Such affirmative contribution need not always be in the form of actively directing a contractor or contractor’s employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.” (Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)
•“If a hirer entrusts work to an independent contractor, but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.” (Tverberg v. Fillner Constr., Inc. (2012) 202 Cal.App.4th 1439, 1446 [136 Cal.Rptr.3d 521].)
•“A hirer’s failure to correct an unsafe condition, by itself, does not establish an affirmative contribution.” (Khosh v. Staples Construction Co., Inc. (2016) 4 Cal.App.5th 712, 718 [208 Cal.Rptr.3d 699].)
•“Although drawn directly from case law, [plaintiff]’s proposed Special Instructions Nos. 2 and 8 are somewhat misleading in that they suggest that in order for the hirer to ‘affirmatively contribute’ to the plaintiff’s injuries, the hirer must have engaged in some form of active direction or conduct. However, ‘affirmative contribution need not always be in the form of actively directing a contractor or contractor’s employee. There will be times when a hirer will be liable for its omissions.’ The Advisory Committee on Civil Jury Instructions recognized the potential to confuse the jury by including ‘affirmative contribution’ language in CACI No. 1009B. The committee’s Directions for Use states: ‘The hirer’s retained control must have “affirmatively contributed” to the plaintiff’s injury. [Citation.] However, the affirmative contribution need not be active conduct but may be in the form of an omission to act. [Citation.] The advisory committee believes that the “affirmative contribution” requirement simply means that there must be causation between the hirer’s conduct and the plaintiff’s injury. Because “affirmative contribution” might be construed by a jury to require active conduct rather than a failure to act, the committee believes that its standard “substantial factor” element adequately expresses the “affirmative contribution” requirement.’ (Directions for Use for CACI No. 1009B.) [¶] We agree with the Advisory Committee on Civil Jury Instructions that CACI No. 1009B adequately covers the ‘affirmative contribution’ requirement set forth in Hooker.” (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 594–595 [207 Cal.Rptr.3d 712].)
•“When the employer directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee’s injury. [¶] By contrast, passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. Thus, the failure to exercise retained control does not constitute an affirmative contribution to an injury. Such affirmative contribution must be based on a negligent exercise of control. In order for a worker to recover on a retained control theory, the hirer must engage in some active participation.” (Tverberg, supra, 202 Cal.App.4th at p. 1446, internal citations omitted.)
•“Although plaintiffs concede that [contractor] had exclusive control over how the window washing would be done, they urge that [owner] nonetheless is liable because it affirmatively contributed to decedent’s injuries ‘not [by] active conduct but … in the form of an omission to act.’ Although it is undeniable that [owner]’s failure to equip its building with roof anchors contributed to decedent’s death, McKown [v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219] does not support plaintiffs’ suggestion that a passive omission of this type is actionable. … Subsequent Supreme Court decisions … have repeatedly rejected the suggestion that the passive provision of an unsafe workplace is actionable. … Accordingly, the failure to provide safety equipment does not constitute an ‘affirmative contribution’ to an injury within the meaning of McKown.” (Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1093 [229 Cal.Rptr.3d 594], original italics.)
•“[U]nder Government Code section 815.4, a public entity can be held liable under the retained control doctrine, provided a private person would be liable under the same circumstances. This means that the public entity must negligently exercise its retained control so as to affirmatively contribute to the injuries of the employee of the independent contractor.” (McCarty v. Department of Transportation (2008) 164 Cal.App.4th 955, 985 [79 Cal.Rptr.3d 777], original italics.)
•“The Privette line of decisions establishes a presumption that an independent contractor’s hirer ‘delegates to that contractor its tort law duty to provide a safe workplace for the contractor’s employees.’ … [T]he Privette presumption affects the burden of producing evidence.” (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 642 [221 Cal.Rptr.3d 119], internal citations omitted.)