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03/21/13 It's The Law: Independent Contractor Can Avoid Liability

It's The Law

Independent Contractor Can Avoid Liability

(3/21/13)

Question:

I am signing a contract with a contractor to paint my house. Other than my obligation to pay the contractor, will I be exposed to any additional liability?

Answer:

When you hire someone to perform services, they are either an "employee" or "independent contractor". An "employee" is generally someone who you direct as to time, place and manner of service. An "independent contractor" is ordinarily not an employee and is distinguished by the independent nature of performance. An independent contractor is usually hired for a specific result. Working hours, manner of reaching the result and control over most aspects is vested in the contractor. Payment to an employee may be hourly or salaried while payment to a contractor is generally in a lump sum or installments. Your contract with the painting contractor is almost without doubt an independent contractor arrangement.

The general rule is that an independent contractor is liable for injuries caused by the contractor's own negligence. That means the independent contractor is liable for injuries to himself or his employees, personal injury to third parties and property damage caused by the contractor. There are exceptions.

A property owner may be liable for injury to persons or property where the work done by the independent contractor is inherently dangerous as in blasting or pile driving operations. You can also be liable if you become involved in the activities of the contractor or personally contribute to creation of a dangerous condition. The latter exception to immunity is the one which most often trips up a homeowner.

Florida courts have frequently held that one who hires an independent contractor is not liable for injuries sustained by the contractor's employees or others unless the homeowner interferes or meddles with the job to the extent of assuming detailed direction or is personally negligent.

The good news is that the courts have agreed an owner's right to inspect work of an independent contractor to confirm it has been properly completed does not convert the owner from a passive non-participant to a supervisor or director and the owner remains free from liability. A review of some typical Florida cases may be helpful.

In the 1950 case of Hall v. Holland, Florida's Supreme Court explained that a property owner owes a duty to an independent contractor to use reasonable care in maintaining the owner's property in safe condition and that the owner must give a contractor notice and warning of any latent or concealed perils which are known to the owner or which the owner should have known. In that case, a painter sued the property owner for injuries when a canopy fell on the painter. The court explained that the canopy supports appeared to be in need of repair and the property owner would be liable to the painter if the owner knew of the dangerous condition and failed to warn the painter of it.

On the other hand, in Mozee v. Champion International Corporation, an employee of an independent contractor was killed when he contacted a live electrical wire while working on the property owner's building. The court ruled that it was the contractor's responsibility to make sure the electricity was disconnected and that relieved the owner of liability for the worker's death. This was true even though the owner had a representative on site for purpose of assuring the contractor complied with plans and specifications of construction.

A similar result was reached in City of Mount Dora v. Voorhees. In that case, an independent contractor's employee was killed when wire attached to his truck, in course of removing overhead power lines for the City, came into contact with an energized line. Even though the City has its superintendent of utilities frequently at the jobsite to make sure the contractor was properly replacing the City's electricity distribution system, and even though the superintendent asked one member of the contractor's crew to fasten the wire to the truck and had even asked the decedent to drive the truck, there was not such negligent interference in performance of the independent contractor's contract as would render the City liable.

These cases mean that the meddling homeowner is at risk. If you cannot resist directing the performance by the contractor and his employees, you may be making yourself liable for any injuries to the employees or property of others by the contractor. Even if you are not a "meddler", just being helpful may be enough to cross the line.

In the recent case of Umile v. Volpe, a homeowner hired a handyman to install an attic ladder. While installing the ladder, the handyman fell and was injured, with the ultimate result of his leg being amputated. The handyman sued the homeowner.

The handyman claimed he asked the homeowner to position the ladder so the handyman could reach it and hold it when he came down. He assumed the homeowner moved the ladder and positioned it properly. When he exited the attic, the ladder tipped over. The homeowner denied the allegations but admitted he held the ladder when the handyman went into the attic. The trial court granted summary judgment in favor of the homeowner. That means the judge felt there was no way the handyman could win at trial.

The appellate court reversed. It explained that there were disputed issues of fact. It explained that if one undertakes action for benefit of another, even gratuitously, the action must be performed in accordance with an obligation to exercise reasonable care. If the homeowner agreed to hold the ladder, he had a duty to hold it with reasonable care. The case was sent back for trial to determine if the homeowner agreed to hold the ladder and, if he did, whether he was negligent in performing that task.

The Umile case makes it clear that if you take any action to assist your contractor, you better be sure what you do is safe, appropriate and properly performed. If not, you may well be seeing a lot of your attorney.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorris.com.

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