Employers Could Face Tort Liability for Independent Contractors

May 4, 2021

Employers Could Face Tort Liability for Independent Contractors Actions

Photo by Green Chameleon on Unsplash
Employers usually think that they won’t be held legally responsible for tort claims based on work that their independent contractors perform for them. But there are clear exceptions to this rule.

Under a common law principle known as Respondeat Superior, when employers assign their employees any task on behalf of their business, employees owe a legal duty to practice reasonable caution and care when performing their job duties. If employees fail to do so and their actions cause injury to another individual, it can lead to vicarious liability for employers. If negligent employees were acting within the scope and course of their employment during the accident that resulted in injury, employers may likewise be held liable.

While courts can hold employers vicariously liable for their employees’ negligent acts, employees will not be automatically liable for the negligent acts of independent contractors. But there are three specific exceptions to this law:

  1. Employees could be held vicariously liable for the misconduct of independent contractors if employers were negligent in choosing or retaining the contractors.
  2. Employers could be held accountable if they assigned non-delegable tasks to the contractors.
  3. Employers may be liable in the event that the contractors’ work duties involved inherently hazardous tasks.

Negligent Selection and Vicarious Liability

You may not be exempt from vicarious liability for the negligence of an independent contractor if you were negligent in choosing the contractor. Once the independent contractor is working for you, you may still be exposed to personal or independent liability rather than vicarious liability if you engaged in negligent hiring practices. Basically, hiring an independent contractor doesn’t automatically absolve you of independent negligence if you did not exercise reasonable care in hiring only competent independent contractors who can do the work safely.

Courts will mainly consider these factors when determining whether to hold employers vicariously liable for an accident because they negligently selected the independent contractor:

  • Whether an employer did their due diligence and examined the competence, experience, and background of the independent contractor.
  • Whether the assigned job duties are within the average or reasonable person’s competence or if they were tasks that can only be performed by individuals with the proper experience, skill, and knowledge.
  • The job’s potential risks to which other individuals will be exposed if the independent contractor failed to perform the work properly.

For example, let’s say that you own an apartment building that had old wiring that needed repairs. Your friend tells you that he knows someone who can do the work, and you believe your friend. You contact the contract and hire him to do the repairs on the damaged wiring. But the contractor failed to fix the wiring, and his actions caused a huge fire that resulted in several of your tenants sustaining severe injuries.

In this scenario, you may be held vicariously liable for the accident because you did not do a thorough background check on the negligent independent contractor’s competence and experience. You also technically passed on a non-delegable duty to the contractor, which, in turn, resulted in public harm.

Non-Delegable Duty and Vicarious Liability

You can be held vicariously liable for the misconduct of an independent contractor if you assign the contractor non-delegable tasks, specifically those that involve the welfare and safety of other individuals. For instance, from the example above, property owners have a non-delegable duty to ensure that their properties are reasonably safe at all times.

Certain responsibilities are very crucial to public safety that the courts deem them non-delegable duties or tasks, even when they’re performed by independent contractors. This means that employers can be vicariously liable for the contractor’s negligence even if the employer exercised reasonable care.

For example, let’s say that the mayor, along with the city council, hired an independent contractor to make repairs on an old rusty bridge because of obvious signs that the foundation is weakening. But the contractor didn’t do the work properly, resulting in the bridge collapsing and killing many people. In this scenario, the city council and the mayor may be held vicariously liable since the faulty bridge repairs endangered public safety.

Other common examples of non-delegable duties include the government’s duty to maintain roads and highways, an employer’s duty to ensure safety in the workplace, and the duty of owners of restaurants, shops, and similar businesses to keep their premises reasonably safe for visitors.

Inherently Hazardous Tasks and Vicarious Liability

You may also be held vicariously liable for the negligent acts of an independent contractor if you assign the contractor tasks that entail inherently hazardous activities that can cause harm to other individuals. The reasoning behind this is that given the inherently dangerous nature of the specific task, it’s more likely that harm to others could occur absent appropriate safety measures. Furthermore, it would simply be unconscionable for an employer to be immune to liability for the potential risks associated with inherently dangerous activities merely by shifting or assigning the responsibility to independent contractors.

For instance, the city council hired an independent contractor to perform a fireworks display showcase during the city’s 60th anniversary. Thousands of people are expected to attend the event. Unfortunately, one of the independent contractor’s employees didn’t set up the fireworks display properly, resulting in some of the fireworks firing into the massive crowd and severely injuring several attendees. In this case, the city council is vicariously liable for the accident that occurred since fireworks displays at public venues are inherently hazardous.

Save Yourself from Tort Liability. Call a Virginia Business Lawyer Today

The legal doctrine of vicarious liability law continues to evolve in today’s modern and more complex business environment that it can now be applied, due to certain exceptions, to employer-independent contractor relationships. It’s now more crucial than ever that employers do their due diligence when hiring independent contractors, or they might be exposing their organization to tort liability.

To learn more about how you can protect your business against tort liability or other business advice, call the Virginia law firm McClanahan Powers at 703-520-1326 or contact us online to schedule a consultation with an attorney.