CACI 2924 Status as Defendant’s Employee—Subservant Company
California Civil Jury Instructions CACI
2924 Status as Defendant’s Employee—Subservant Company
[Name of plaintiff] claims [he/she/nonbinary pronoun/[name of decedent]] was [name of defendant]’s employee because [he/she/nonbinary pronoun] was employed by [name of primary employer], a company that was controlled by [name of defendant]. To succeed on this claim, [name of plaintiff] must prove all of the following:
1.That [name of defendant] controlled or had the right to control the daily operations of [name of primary employer];
2.That [name of defendant] controlled or had the right to control the physical conduct of [name of primary employer]’s employees in the course of the work during which [name of plaintiff/decedent] was [injured/killed]; and
3.That [name of plaintiff/decedent] was performing services for the benefit of [name of defendant] at the time of [injury/death].
New September 2003; Revised June 2011
https://crowdsourcelawyers.com/judicial-council-california-civil-jury-instructions-caci
Directions for Use
For factors that may apply to determine whether the employer has a right to control, see CACI No. 2923, Borrowed Servant/Dual Employee. These factors are taken from section 220 of the Restatement Second of Agency. The factors were not included in the Restatement Third of Agency.
Sources and Authority
•“In the Kelley case, the Supreme Court recognized that if a second company could be shown to be a conventional common-law servant, the ‘control or right to control’ test would be met.” (Bradsher v. Missouri Pacific Railroad (8th Cir. 1982) 679 F.2d 1253, 1257–1258, internal citation omitted.)
•“To prove WFE was [defendant]’s servant, [plaintiff] must establish [defendant] controlled or had the right to control the physical conduct of WFE’s employees in the course of the work during which the injury allegedly occurred. The subservant theory presupposes the existence of two separate entities in a master-servant relationship. A plaintiff can proceed under this theory by showing his employer was the common-law servant of the defendant railroad such that the railroad controlled or had the right to control the employer’s daily operations. A plaintiff must also show he was ‘employed to perform services in the affairs of [the defendant railroad] and … with respect to the physical conduct in the performance of the services [was] subject to [that railroad’s] control or right to control.’ For [plaintiff] to succeed under the subservant theory, he must show [defendant] controlled or had the right to control his physical conduct on the job. It is not enough for him to merely show WFE was the railroad’s agent, or that he was acting to fulfill the railroad’s obligations; [defendant]’s generalized oversight of [plaintiff], without physical control or the right to exercise physical control of his daily work is insufficient.” (Schmidt v. Burlington Northern & Santa Fe Ry. (9th Cir. 2010) 605 F.3d 686, 689–690, internal citations omitted.)
•“Where the evidence of control is in dispute, the case should go to the jury.” (Vanskike v. ACF Industries, Inc. (8th Cir. 1981) 665 F.2d 188, 198, internal citations omitted.)
•“In this case … the evidence of contacts between Southern Pacific employees and PMT employees may indicate, not direction or control, but rather the passing of information and the accommodation that is obviously required in a large and necessarily coordinated operation. The informal contacts between the two groups must assume a supervisory character before the PMT employees can be deemed pro hac vice employees of the railroad.” (Kelley v. Southern Pacific Co. (1974) 419 U.S. 318, 330 [95 S.Ct. 472, 42 L.Ed.2d 498].)
•Restatement Second of Agency, section 220(1), defines a servant as “a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.” Section 220(2) lists various factors that are helpful in applying this definition:
(a)the extent of control which, by the agreement, the master may exercise over the details of the work;
(b)whether or not the one employed is engaged in a distinct occupation or business;
(c)the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d)the skill required in the particular occupation;
(e)whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f)the length of time for which the person is employed;
(g)the method of payment, whether by the time or by the job;
(h)whether or not the work is a part of the regular business of the employer;
(i)whether or not the parties believe they are creating the relation of master and servant; and
(j)whether the principal is or is not in business.
•“While [section 220] is directed primarily at determining whether a particular bilateral arrangement is properly characterized as a master-servant or independent contractor relationship, it can also be instructive in analyzing the three-party relationship between two employers and a worker.” (Kelley v. Southern Pacific Co. (1974) 419 U.S. 318, 324 [95 S.Ct. 472, 42 L.Ed.2d 498].)
•“In 2006 the Restatement (Second) of Agency was superseded by the Restatement (Third) of Agency, which uses ‘employer’ and ‘employee’ rather than ‘master’ and ‘servant,’ Restatement (Third) of Agency, § 2.04, comment a, and defines an employee simply as a type of agent subject to a principal’s control. Id., § 7.07(3)(a).” (Schmidt, supra, 605 F.3d at p. 690, fn. 3.)