Hirer of Independent Contractor
Is, Generally, Not Liable
for Damages Caused by the Contractor
10/09/05
Dear
Mr.
Duman:
I have
been
under the impression that a homeowner, who hires an independent
contractor to
work on their property is not liable
for damages, which may be caused as a result of the contractor's
negligence.
Recently
I
have been told that this is not the
case where the contractor has been hired to do work, which is
particularly
hazardous. Is this true?
G.
S., Burlingame
Dear
G. S:
While it is
generally true that a homeowner, who hires an “independent” contractor
is not
held vicariously liable for damages resulting from the contractor’s
acts during
the course of his work, there is, in fact, an exception, when the contracted work is deemed to carry a
"Peculiar Risk" of damage or injury.
The general
rule limiting vicarious liability for an independent contractor's
wrongdoing is
based on the notion that an independent contractor is deemed to act
independently of the hiring party’s direct supervision and control. By contrast, an “employee” is someone, who
is considered to be under the continual control and direction of the
employer. Therefore, the employer is
generally liable for the employee's wrongful actions, which arise
within the
course or scope of the employment.
One of the
few exceptions to the general rule of limited liability is the
“Peculiar Risk”
doctrine, which imposes vicarious
liability on a person, who hires an independent contractor to perform
work
considered to be "inherently" dangerous or hazardous.
The reasoning behind the “Peculiar Risk”
doctrine is the expectation that a hiring party, who is aware that the
proposed
work is especially dangerous, is obliged to take the proper precautions
to
ensure that the public at large is not injured by the actions of those
undertaking such work, regardless of whether they are “employees” or
“independent contractors".
Whether or
not a particular project can be considered a “Peculiar Risk” for
purposes of
applying the doctrine, is ultimately judged on a case‑by‑case basis. The general standard applied requires a
showing that: (1) there was a risk, which was “Peculiar" to the work in
question (i.e. not an everyday occurrence);
and, (2) the risk was inherent to either the nature or location
of the
work; and, (3) the risk was such that a “reasonable” person with the
commensurate level of experience and knowledge would have known to take
special
precautions against the risk.
Examples of
work, which might be deemed to entail a “Peculiar Risk” include
demolition
work, skyscraper construction and work involving toxic materials. Such work involves risk of dangers, which,
while not likely on an everyday basis, nevertheless occur on a
statistically
regular basis. In other words, a
“Peculiar Risk” generally will not include wholly unexpected or
abnormal
hazards (such as earthquakes or meteor collisions).
Likewise, the “Peculiar” Risk” doctrine is not generally
deemed applicable to hazards arising out of preventable situations such
as use
of insufficient tools, gross incompetence or other risks,
which are not inherent to the activity, when
performed under proper conditions.
Readers with
questions regarding independent contractors or the "Peculiar Risk"
Doctrine should consult with their respective lawyers for direct
guidance or
assistance.
FD765 9/30/05
4\column\Indepnd4.ctr
Readers may address their
questions to The Real Estate
Lawyer, Fred M. Duman, 2807 Castro Valley Boulevard, Castro Valley, California
94546. Mr. Duman will answer those of
general
interest in his column. He reserves the
right to edit the letter for brevity and clarity.
Each real estate problem
usually has its own distinct
circumstances, and frequently is more complicated than realized by a
layperson. Readers are also encouraged
to consult with their own lawyers to obtain guidance concerning their
problems
when they first arise.
Readers are cautioned that
these answers are not intended
to be the basis for any action or reliance by the reader.
You are welcome to
visit our web site at “www.dumanlaw.com”.
© 2005, Fred M. Duman All Rights Reserved. Please see our disclaimer.
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