Independent contractor rule and it's exceptions

Asked about 2 years ago - Greenwich, CT

I genuinely appreciate any and all opinions. Please consider the following:

In particular, § 410 pertains to situations in which an employer exercises control
over the work of the independent contractor. Section 410 provides: ‘‘The 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.’’ 2 Restatement (Second),Torts § 410 (1965).

Due to limitations on length, the actual question I will admit in the next space.

Additional information

A property owner contracts with an independent contractor for the removal of a restaurant hood. The workers use a cutting torch in a negligent manner and burn the building. The contractor alleged that he told the owner that he would only remove the hood and not the ductwork due to a "safety risk". The issue is whether the owner's negligent instructions to the workers to trim the ductwork flush to the ceiling constitutes an exception to the independent contractor rule and thus vicarious liability. The rub here is whether the overarching principle here of CONTROL AND SUPERVISION are set aside. The decision also found the workers to be grossly negligent, so they necessarily were aware of the dangers. So, does the control and supervision provision of the ind. cont. rule vanish if a request is made to do something negligent and there is compliance?

Attorney answers (1)

  1. Robert M Fortgang

    Pro

    Contributor Level 13

    Answered . What is clear from your your rendition of the facts is that your dispute is heavily fact intensive. In all candors, drawing from my 30+ years of litigating these issues ... what I have observed is that the equities definitely lay with the injured property owner, absent evidence to the contrary. Perhaps there are additional facts that you have not yet shared. If you care to follow up privately, I would be pleased to review your situation. Good luck and best regards, Rob Fortgang

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