Following Regalado v. Callaghan (2016) 3 Cal.App.5th 582, this decision holds that CACI 1009B properly states the elements of the retained control exception to the independent contractor rule. An additional special instruction requiring a showing that the defendant hirer “affirmatively contributed” to the accident was correctly refused because a hirer that retains control over safety measures may be liable for injuries to an independent contractor’s worker not only by negligent affirmative acts, but also by negligent omissions—here, a failure to warn the worker that a circuit breaker was still energized. While there was sufficient evidence for the jury to find the defendant hirer was liable, the trial court did not abuse its discretion in ordering a new trial confined to the issue of the comparative fault of the independent contractor and hirer—as there was much evidence that the independent contractor was far more at fault than the hirer, yet the jury had found them equally at fault. A new trial may properly be ordered on the sole issue of the comparative fault of various defendants.
California Court of Appeal, Fourth District, Division 1 (Benke, J.); October 19, 2018; 28 Cal. App. 5th 381