Chapter 34: Independent Contractor

§34.1 Liability of Employer for Negligence of Contractor

The Case: Waggoner Motors, Inc. v. Waverly Church of Christ , 159 S.W.3d 42 (Tenn. Ct. App. 2005).

The Basic Facts: Church hired painting contractor to paint church. Overspray caused damages to plaintiff car dealer's inventory. Plaintiff sought to impose liability on church for contractor's negligence.

The Bottom Line:

• "Tennessee, like many jurisdictions, recognizes the principle that the employer of an independent contractor is not automatically liable for physical harm caused to another by the contractor's negligence. McHarge v. M. M. Newcomer & Co., [100 S.W. 700, 702 (Tenn. 1907)]; Wilson v. Thompson Constr. Co., 86 S.W.3d 536, 541 (Tenn. Ct. App. 2001); [RESTATEMENT (SECOND) OF TORTS § 409 (1965)]. The scope of this principle's application has been narrowed dramatically over the years by the recognition of numerous exceptions. Givens v. Mullikin, 75 S.W.3d 383, 394 (Tenn. 2002) (noting that the principle has many exceptions); see also [Restatement (Second) of Torts §§ 410-429]; [W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 71, at 509-516 (5th ed. 1984)]. Indeed, it has been said that the principle is now so riddled with exceptions that it is only applied when the courts cannot find a good reason to ignore it. [RESTATEMENT (SECOND) OF TORTS § 409 cmt. b.]" 159 S.W.3d at 52-53.
• "The facts of this case implicate four of the [RESTATEMENT (SECOND) OF TORTS]'s exceptions to the principle of the employer's non-liability for the negligence of an independent contractor.^FN22 First, [RESTATEMENT (SECOND) OF TORTS § 410] provides that '[t]he employer of an independent contractor is subject to the same liability for physical harm caused by an act or omission committed by the contractor pursuant to orders or directions negligently given by the employer, as though the act or omission were that of the employer himself.' The Tennessee Supreme Court has recognized this exception as the chief exception to the non-liability principle. Givens v. Mullikin, 75 S.W.3d at 394. Employers are not liable under this section if they neither knew nor should have known that the work involved an unreasonable risk of harm to others when they gave their orders or instructions. However, an employer will be liable if, having been informed of a risk that the contractor has discovered, it requires the contractor to carry out its original orders or instructions. [RESTATEMENT (SECOND) OF TORTS § 410 cmt. C].

  FN22 The [RESTATEMENT (SECOND) OF TORTS] lists numerous exceptions to the non-liability principle, grouping them into three broad categories: (1) exceptions based on the employer's negligence in selecting, instructing, or supervising the independent contractor, (2) exceptions based on non-delegable duties the employer owes to the public in general or to the plaintiff in particular, and (3) exceptions based on work that is specifically, peculiarly, or inherently dangerous. Restatement (Second) of Torts § 409 cmt. b."

  Id . at 53.
• "[Second, Restatement (Second) of Torts § 414] provides as follows:

  One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care."

  Id .
• "Our courts have recognized this exception implicitly by emphasizing the central importance of the right to control when determining whether a person is an employee or independent contractor.^FN23 This exception usually applies to general contractors who have entrusted part of their work to subcontractors but who superintend the entire job. [RESTATEMENT (SECOND) OF TORTS § 414 cmt. b]. For this exception to apply, the employer must have retained sufficient control that the independent contractor is not entirely free to perform the work in his or her own way. [RESTATEMENT (SECOND) OF TORTS § 414 cmt. c.].

FN23 Gulf Ref. Co. of la. v. Huffman & Weakley, [297 S.W. 199, 200-201 (Tenn. 1927)]; Howell v. Shepherd, [196 S.W.2d 849, 852 (Tenn. Ct. App. 1945)]."

Id .
• "Third, [RESTATEMENT (SECOND) OF TORTS § 414A] provides:

  A possessor of land who has employed or permitted an independent contractor to do work on the land, and knows or has reason to know that the activities of the contractor or conditions created by him involve an unreasonable risk of physical harm to those outside of the land, is subject to liability to them for such harm if he fails to exercise reasonable care to protect them against it."

  Id . at 53-54.
• "This exception applies whenever the independent contractor's activities involve an unreasonable risk of harm to persons outside the employer's property. [RESTATEMENT (SECOND) OF TORTS § 414A cmt. a.]. Employers may reasonably assume that a competent contractor is performing the work properly until they have reason to know the contrary. However, an employer will be liable if it knows or has reason to know that the contractor is engaging in or about to engage in an activity which under the circumstances, will involve an unreasonable risk of harm to others outside the owner's property. [RESTATEMENT (SECOND) OF TORTS § 414A cmt. b.].
  
  Finally, [RESTATEMENT (SECOND) OF TORTS § 427] provides:

  One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger.

  The exception applies when the contractor is performing work that involves risk, recognizable in advance, of physical harm to others that is inherent in the work itself or in the usual or prescribed way of doing the work. [RESTATEMENT (SECOND) OF TORTS § 427 cmt. b]; see also Powell v. Construction Co., 13 S.W. 691, 692 (Tenn. 1890)]; Potter v. Tucker, 688 S.W.2d 833, 836 (Tenn. Ct. App. 1985). The risk must be one that should be reasonably anticipated at the time of the contract. [RESTATEMENT (SECOND) OF TORTS cmt. d]; McHarge v. M. M. Newcomer & Co., [100 S.W. at 704] (noting that the risks must be ones that should be reasonably anticipated).
  
  It is clear from several of the illustrations provided by the [RESTATEMENT (SECOND) OF TORTS] that this exception is not limited to work that is abnormally dangerous or that carries with it a high degree of risk of harm to others. For example:

  A employs B, an independent contractor, to paint the wall of his building above the public sidewalk. In the course of the work a workman employed by B drops his paint bucket, which falls upon C, a pedestrian, and injures him. The danger is inherent in the work, and A is subject to liability to C.

  [RESTATEMENT (SECOND) OF TORTS § 427 cmt. d, illus. 1].^FN24

  FN24 See also [RESTATEMENT (SECOND) OF TORTS § 426 cmt. b, illus. 3]. The [Restatement] observes that 'the use of a scaffold in painting the wall of a building above a sidewalk involves a recognizable risk that the scaffold, paint brush or bucket, or the painter himself, may fall and injure someone passing below.' [RESTATEMENT (SECOND) OF TORTS § 427 cmt. c.]."

  Id . at 54.
• "Similarly:

  A employs B, an independent contractor, to build a wall on A's land. While the wall is under construction B's workmen negligently splash mortar over C's adjoining windows and the clothes in her yard. A is subject to liability to C.

  [RESTATEMENT (SECOND) OF TORTS § 426 cmt. b, illus. 5].
  
  Thus, the exception will apply to any work which, although not highly dangerous, involves a risk recognizable in advance that danger inherent in the work itself, or in the ordinary or prescribed way of doing it, may cause harm to others. [RESTATEMENT (SECOND) OF TORTS, § 427 cmt. c.]. ^FN25

  FN25 The exception does not apply, however, when the contractor's collateral negligence creates a new risk that is not inherent in the work itself or in the usual and prescribed way of doing the work. [RESTATEMENT (SECOND) OF TORTS § 427 cmt. d.]. The [RESTATEMENT (SECOND) OF TORTS] provides the following illustration:

  A employs B, an independent contractor, to paint the wall of his building above the public sidewalk. B erects his scaffolding at a level so low that C, a pedestrian walking along the sidewalk in the dark, runs his head against the corner of the scaffold and is injured. This is collateral negligence, and A is not liable to C.

  [RESTATEMENT (SECOND) OF TORTS § 427 cmt. d, illus. 2]."

  Id .
• "In this case, the church is both a landowner and a general contractor. As a general contractor, it retained authority to superintend the entire construction job, including when the work on the different parts of the project would be performed. The church was exercising this authority directly through its construction supervisor on the morning of June 17, 1997." Id. at 56.
• "Overspray is a well-known risk inherent in spray painting. The risk of damage to surrounding property caused by overspray is unreasonable because the probability and gravity of the damage far outweighs the burden on persons engaged in spray painting to take proper precautions to prevent the damage. The risk of overspray should have been known by the church when it contracted with Mr. Bare to spray paint the steel beams on its new building. Even if the church, for some reason, was unaware that spray painting had an inherent risk of overspray, it had actual knowledge of the overspray problem on June 17, 1997 when Mr. Bare expressed his concern about spray painting because of the wind conditions. Despite Mr. Bare's warnings, the church and its construction supervisor instructed Mr. Bare to begin spray painting, and the construction manager insisted that the spray painting continue even after the wind blew down several of the tarpaulins that had been erected to minimize the dispersion of the overspray by the wind." Id.
• "Based on these facts, the church either knew or had reason to know that spray painting, even when properly performed, carried with it a risk of overspray that could damage other's property. Because the church was both the property owner and its own general contractor, it retained sufficient control over the project to decide when the various parts of the work, including the spray painting, would be carried out. Based on its actual and imputed knowledge of the potential overspray problems, particularly the problems resulting from the windy conditions on June 17, 1997, the church acted negligently by insisting that Mr. Bare spray paint the steel beams after he expressed his concern about the effect the wind would have on the overspray. Accordingly, the trial court properly concluded that the church was liable not only for the damage to the vehicles parked on Waggoner's parking lot, but also for damages to Waggoner's business resulting from the overspray." Id. at 56-57.

Recent Cases: Allen v. Sulcer , No. M2006-01236-COA-R3-CV, 2007 WL 2428085 (Tenn. Ct. App. Aug. 27, 2007) (reversing summary judgment finding that the defendant did not carry his burden on issue of duty to select competent contractor)); Oliver v. Prologis Trust, No. W2006-00584-COA-R3-CV, 2006 WL 3731211 (Tenn. Ct. App. Dec. 19, 2006) perm. appeal denied (May 21, 2007) (holding that premises owner owed no duty to prevent independent contractor from hiring plaintiff, and finding facts of case did not fall under any exception to general rule that premises owner is not liable for negligence of independent contractor).

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