CACI 3707 Special Employment—Joint Responsibility

California Civil Jury Instructions CACI

3707 Special Employment—Joint Responsibility

If you decide that [name of worker] was the special employee of [name of defendant borrowing employer], but that [name of defendant lending employer] partially controlled [name of worker]’s activities along with [name of defendant borrowing employer], then you must conclude that both [name of defendant lending employer] and [name of defendant borrowing employer] are responsible for the conduct of [name of worker].

Directions for Use

Give this instruction with CACI No. 3706, Special Employment—Lending Employer Denies Responsibility for Worker’s Acts, if the jury will be given the option of deciding that both the lending employer and the borrowing employer should be treated as the worker’s employer with regard to the claim at issue.

Sources and Authority

“ ‘ “Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers—his original or ‘general’ employer and a second, the ‘special’ employer.” ’ A general employer is absolved of respondeat superior liability when it has relinquished total control to the special employer. During this period of transferred control, the special employer becomes solely liable under the doctrine of respondeat superior for the employee’s job-related torts.” (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520 [168 Cal.Rptr.3d 123], internal citations omitted.)

“Facts demonstrating the existence of a special employment relationship do not necessarily preclude a finding that a particular employee also remained under the partial control of the original employer. Where general and special employers share control of an employee’s work, a ‘dual employment’ arises, and the general employer remains concurrently and simultaneously, jointly and severally liable for the employee’s torts.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 494–495 [162 Cal.Rptr. 320, 606 P.2d 355], internal citations omitted.)

“This is especially true where the loaned employee performs work of interest to both the general and special employers.” (Societa per Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 460 [183 Cal.Rptr. 51, 645 P.2d 102], internal citation omitted.) If the loaned employee performs work of interest to both the general and special employers, “there is a presumption that the [employee] remained in his general employment. (Ibid.) The [general employer] can avoid liability only if it can [prove] that it gave up … ‘authoritative direction and control’ [over the employee].” (Ibid.)

“ ‘Authoritative direction and control’ is more than the power to suggest details or the necessary cooperation.” (Societa per Azioni de Navigazione Italia, supra, 31 Cal.3d at p. 460, internal citations omitted.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment, §§ 179–182
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.03[2][e] (Matthew Bender)
51 California Forms of Pleading and Practice, Ch. 577, Workers’ Compensation, § 577.22 (Matthew Bender)
23 California Points and Authorities, Ch. 239, Workers’ Compensation Exclusive Remedy Doctrine, § 239.28 (Matthew Bender)
California Civil Practice: Torts §§ 3:26–3:27 (Thomson Reuters)