(Independent Contractor) Trial court improperly instructs jury that right of control is dispositive in determining whether worker is City’s employee or independent contractor. Barry A. Bowman v. Tommie Wyatt Jr., et al., No. B207468 (Los Angeles County California Courts of Appeal, Second Appellate District, Division Four July 1, 2010).
Plaintiff brought this action after suffering devastating injuries when his motorcycle collided with a truck owned and operated by the defendant. The collision occurred shortly after defendant delivered a load of asphalt to a work site of defendant city, with whom defendant was under contract. The jury found that the defendant driver caused the accident by negligently making a left turn in front of plaintiff’s motorcycle. The jury further found that the defendant driver was a city employee and that the city breached a duty to inspect and maintain the dump trucks brakes, that the truck was controlled by the city and was in a dangerous condition and that the work in which the plaintiff was engaged in at the time at the accident involved a special risk of harm. The city appealed contending that the jury was misinstructed on several critical issues including the factors it was to consider in determining if the defendant driver was an employee or independent contractor. The Appeals Court reversed and agreed with the city’s contention that the trial court erred by misinstructing the jury about the factors relevant to determining whether the driver was an employee or an independent contractor, allowing the jury to find that the work in which the driver was engaged involved a peculiar risk of harm and instructing the jury that the city was the motor carrier as a matter of law. In so holding, the Appeals Court found that California Approved Civil Instruction (CACI) No. 3704 does not set forth the correct statement of the law. The court stated that the jury instruction did not provide the jury with an appropriate instruction to consider a multifactor test when determining whether a worker is engaged as an employee or independent contractor. Those factors include whether the workers engaged in a distinct occupation or business, the skill required in the particular occupation, whether the employer or the worker supplies the tools in place of work, length of time for which services are to be performed among others.
Hence, the “control test” is identified within CACI No. 3704 was found not to correctly instruct the jury under the facts of this case. This jury instruction should be now viewed with circumspection with regard to its application of future cases based upon this Appeals Court decision.
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