Negligence - Independent contractors and nondelegable duties

Learning Outcomes

After reading this article, you will be able to identify when a principal is liable for the negligence of an independent contractor, explain the doctrine of nondelegable duties, recognize the main exceptions to the general rule of no vicarious liability, and apply these principles to MBE-style questions.

MBE Syllabus

For MBE, you are required to understand the rules governing liability for the acts of independent contractors, including the doctrine of nondelegable duties. This article will help you revise:

• The general rule of non-liability for independent contractors' torts.
• The main exceptions, especially nondelegable duties.
• The types of activities and relationships that create nondelegable duties.
• How these principles are tested in MBE questions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is most likely to be considered a nondelegable duty for which a principal remains liable even if an independent contractor is used?
   1. Routine office cleaning
   2. Repairing a public sidewalk adjacent to the principal’s property
   3. Delivering mail
   4. Painting interior walls
2. A store hires an independent contractor to install electrical wiring. Due to the contractor’s negligence, a customer is injured by exposed wires. Who is liable?
   1. Only the independent contractor
   2. Only the store
   3. Both the store and the independent contractor, due to a nondelegable duty
   4. Neither party
3. Which of the following is NOT an exception to the general rule of no vicarious liability for independent contractors?
   1. Nondelegable duties
   2. Inherently dangerous activities
   3. Negligent selection of the contractor
   4. Contractor’s breach of contract

Introduction

In negligence law, a person who hires an independent contractor is generally not liable for the contractor’s negligent acts. However, there are important exceptions, most notably the doctrine of nondelegable duties. Understanding these exceptions is essential for the MBE, as questions often test your ability to distinguish when a principal will be held liable for the acts of an independent contractor.

The General Rule: No Vicarious Liability

The default rule is that a principal (such as a landowner, employer, or business) is not vicariously liable for torts committed by an independent contractor. This is because independent contractors control the manner and means of their work, unlike employees.

Key Term: Independent Contractor
A person or business hired to perform work but who is not subject to the hirer’s control over the details of how the work is done.

Exceptions: When Liability Is Imposed

There are several exceptions to the general rule. The most commonly tested are:

• Nondelegable duties
• Inherently dangerous activities
• Negligent selection of the contractor

Key Term: Nondelegable Duty
A duty that the law does not permit a principal to delegate to another, so the principal remains liable for its breach even if an independent contractor is used.

Nondelegable Duties: The Core Exception

A nondelegable duty is a legal obligation that cannot be avoided by hiring someone else to perform it. If the duty is nondelegable, the principal is liable for the contractor’s negligence in performing that duty.

Common examples of nondelegable duties include:

• The duty of a landowner to keep public areas (like sidewalks) safe.
• The duty to use reasonable care in activities that pose a risk to the public.
• Statutory duties imposed for public safety (e.g., building codes).

Key Term: Inherently Dangerous Activity
Work that, by its nature, carries a high risk of harm even when reasonable care is exercised.

Key Term: Negligent Selection
Liability imposed on a principal who fails to use reasonable care in choosing a competent contractor.

Types of Nondelegable Duties

Nondelegable duties typically arise in these situations:

• Public Safety: Duties imposed by statute or common law for the protection of the public, such as maintaining safe sidewalks or complying with safety regulations.
• Work in Public Places: Activities that affect public rights of way or areas used by the public.
• Inherently Dangerous Work: Activities that are dangerous even when performed carefully, such as demolition or blasting.
• Special Relationships: Duties arising from relationships such as common carrier-passenger or landlord-tenant for common areas.

Worked Example 1.1

A city ordinance requires property owners to keep the adjacent sidewalk in safe condition. A shop owner hires an independent contractor to repair a broken section of sidewalk. The contractor does a poor job, and a pedestrian is injured. Is the shop owner liable?

Answer:
Yes. The duty to maintain a public sidewalk is nondelegable. The shop owner remains liable for the contractor’s negligence, even though the contractor is independent.

Worked Example 1.2

A hospital hires an independent contractor to dispose of hazardous medical waste. The contractor negligently dumps waste in a public park, causing injury. Is the hospital liable?

Answer:
Yes. Disposal of hazardous waste is an inherently dangerous activity and a nondelegable duty. The hospital is liable for the contractor’s negligence.

Other Exceptions: Inherently Dangerous Activities and Negligent Selection

• Inherently Dangerous Activities: If the work is inherently dangerous, the principal is liable for harm resulting from the contractor’s negligence.
• Negligent Selection: If the principal fails to use reasonable care in selecting a competent contractor, the principal is directly liable for that negligence.

Exam Warning

On the MBE, do not confuse vicarious liability for nondelegable duties with direct liability for negligent selection. Nondelegable duty means the principal is liable even if the contractor is competent and the principal was not negligent in selection.

Revision Tip

If a question involves injury to the public or a statutory safety duty, always consider whether the duty is nondelegable, making the principal liable for the contractor’s negligence.

Key Point Checklist

This article has covered the following key knowledge points:

• The general rule: no vicarious liability for independent contractors’ torts.
• Nondelegable duties are a major exception: the principal remains liable even if an independent contractor is used.
• Common nondelegable duties include public safety obligations, statutory duties, and inherently dangerous activities.
• Other exceptions: inherently dangerous activities and negligent selection of the contractor.
• On the MBE, always check for nondelegable duties when public safety or statutory duties are involved.

Key Terms and Concepts

• Independent Contractor
• Nondelegable Duty
• Inherently Dangerous Activity
• Negligent Selection