CACI 3713 Nondelegable Duty

California Civil Jury Instructions CACI

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/nonbinary pronoun] 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.

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 omitted.)

“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 (11th ed. 2017) Torts, § 1401
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.05[3][d] (Matthew Bender)
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)