Negligence - Independent contractors and nondelegable duties

Learning Outcomes

This article explains negligence liability for the acts of independent contractors in MBE-style questions, including:

• How to identify when a worker is an independent contractor rather than an employee by applying the right‑of‑control and related factors emphasized on the exam.
• When a principal is and is not vicariously liable for an independent contractor’s torts under the default no‑liability rule.
• The doctrine of nondelegable duties, how courts classify duties as nondelegable, and how that classification overrides the general no‑liability rule.
• How inherently dangerous activities operate as a key category of nondelegable duties and how they differ from abnormally dangerous activities and strict liability.
• How apparent agency can make a principal liable for an independent contractor’s negligence based on the principal’s manifestations and the plaintiff’s reasonable reliance.
• How direct liability theories—negligent selection, negligent supervision, and negligent retention—differ conceptually and doctrinally from vicarious liability.
• How joint and several liability, contribution, and indemnity typically operate when both the principal and the contractor are liable for the same harm.
• How to approach MBE and essay fact patterns systematically by spotting independent‑contractor language, checking each exception in turn, and selecting the answer that matches the specific liability theory supported by the facts.

MBE Syllabus

For the MBE, you are required to understand liability for the acts of independent contractors within the broader topic of negligence and vicarious liability, with a focus on the following syllabus points:

• The default rule that employers are not vicariously liable for independent contractors’ torts.
• The major exceptions, especially nondelegable duties and inherently dangerous work.
• Statutory and common‑law duties to the public that are treated as nondelegable.
• Apparent agency situations where an independent contractor is treated as an employee.
• Direct liability theories (e.g., negligent selection, negligent supervision) and how they differ from vicarious liability.
• How joint and several liability works when both principal and contractor are liable.

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 in its ceiling during business hours. Due to the contractor’s negligence, a customer is injured by exposed live wires. Who is liable to the customer?
   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.

This topic sits inside the broader doctrine of vicarious liability—situations where one person is held liable for another’s negligence even though the first person did not personally breach any duty to the plaintiff.

Key Term: Vicarious Liability
Liability imposed on one party for the torts of another based solely on the relationship between them, rather than on the first party’s own negligent conduct.

Key Term: Respondeat Superior
The doctrine that an employer is vicariously liable for an employee’s torts committed within the scope of employment.

The independent‑contractor rules are tested as a contrast to respondeat superior: if the tortfeasor is an employee, respondeat superior usually applies; if the tortfeasor is an independent contractor, you must look for an exception.

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 (only the result is controlled).

Labels in the contract (“independent contractor,” “consultant,” etc.) are not conclusive. The key is the right to control the manner and means of performance. On the MBE, if the facts stress that the principal only specified what should be done, not how, treat the actor as an independent contractor.

Distinguishing Employees from Independent Contractors on the MBE

Because the respondeat superior rule depends on employee status, questions often hinge on whether the tortfeasor is an employee or an independent contractor. Courts apply a multi‑factor “right of control” test. Helpful factors to watch for:

• Control over details of work:

  • Employee: principal directs how, when, and with what tools the work is done; can give step‑by‑step instructions.
  • Independent contractor: principal specifies the desired result but leaves methods and details to the worker.

• Who supplies tools and workplace:

  • Employee: employer typically furnishes tools, equipment, and work site.
  • Independent contractor: usually provides own tools and often works off‑site.

• Method of payment:

  • Employee: paid by time (hourly, weekly salary).
  • Independent contractor: paid by the job or project.

• Skill and specialization:

  • Highly specialized, licensed, or non‑routine work (e.g., surgeons, electricians, structural engineers) is often performed by independent contractors.

• Relationship to principal’s business:

  • Work that is part of the principal’s regular business (e.g., servers in a restaurant) more likely suggests employee status; truly separate services suggest contractor status.

• Right to discharge:

  • Broad right to fire at will suggests employee status; termination limited by contract suggests contractor status.

On the MBE, you will rarely need to weigh all factors. The fact pattern usually emphasizes a few facts that clearly point one way. If the question repeatedly mentions that the hirer “had no right to supervise or control the contractor’s methods,” that is a strong signal that you should treat the actor as 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.

• If the tortfeasor is an independent contractor, start from a presumption of no vicarious liability for the hirer.
• The independent contractor is, of course, personally liable for their own negligence.

Typical “no‑liability” scenarios on the MBE:

• A homeowner hires a licensed roofer to re‑shingle the house. The roofer negligently drops a hammer on a passerby. Absent an exception, the roofer is liable, but the homeowner is not.
• A business hires a trucking company (clearly an independent contractor) to transport goods; a truck driver negligently hits a pedestrian. The trucking company is liable; the business that hired the trucking company is not, unless an exception applies.

Exceptions: When Liability Is Imposed

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

• Nondelegable duties
• Inherently dangerous activities
• Apparent agency (sometimes called ostensible agency)
• Negligent selection or supervision of the contractor (direct liability, not vicarious)

Key Term: Nondelegable Duty
A duty that the law does not permit a principal to escape by delegating performance to another; the principal remains liable for its breach even if an independent contractor is used.

Key Term: Inherently Dangerous Activity
Work that, by its nature, carries a significant risk of harm even when reasonable care is exercised (e.g., blasting, large‑scale demolition, some forms of hazardous waste handling).

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

Key Term: Negligent Supervision
Direct liability imposed on a principal who fails to use reasonable care in monitoring or controlling a contractor once the principal knows or should know the contractor is acting dangerously or incompetently.

Key Term: Apparent Agency
A situation where a reasonable third party believes an independent contractor is an employee or agent of the principal, based on the principal’s manifestations, and relies on that appearance.

Key Term: Joint and Several Liability
A rule under which each of multiple defendants liable for the same indivisible harm can be held responsible for the entire amount of the plaintiff’s damages, leaving those defendants to sort out contribution or indemnity among themselves.

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, even though the contractor is not an employee.

Common examples of nondelegable duties include:

• The duty of a landowner or occupier to keep certain areas safe for the public (e.g., public sidewalks abutting the property, store entrances, common areas in an apartment building).
• The duty to use reasonable care in activities that pose a special risk to the public (e.g., working next to a busy roadway).
• Statutory or regulatory duties imposed for public safety (e.g., building codes, safety fencing around excavation, compliance with elevator codes).
• Some aspects of inherently dangerous activities (discussed below).
• Shopkeepers’ duties to maintain safe premises for customers.

The key idea: Even if the principal personally exercised reasonable care in choosing a competent contractor, the principal is still liable if a nondelegable duty is breached.

Policy Behind Nondelegable Duties

Nondelegable duties reflect a policy choice:

• Certain activities create foreseeable, significant risks to the public.
• Certain relationships (e.g., landlord–tenant, common carrier–passenger) place one party in a position of control and another in a position of dependency.
• For these, the law wants the person who benefits from the activity or who is in the best position to spread the loss (typically the business or landowner) to bear the ultimate responsibility, rather than an often under‑insured contractor.

On the MBE, once you identify that the defendant owes such a nondelegable duty, you do not need to ask whether the defendant was personally negligent in hiring or supervising. The duty itself is enough to make the defendant vicariously liable for the contractor’s negligence.

Types of Nondelegable Duties

Nondelegable duties typically arise in these situations:

• Public Safety Duties: Duties imposed by statute or common law for the protection of the public, such as:

  • Maintaining safe sidewalks adjacent to one’s premises.
  • Complying with building, fire, and safety codes.
  • Keeping store aisles and common areas reasonably safe for customers.

• Work in Public Places or Affecting Public Rights of Way: Activities that affect public streets, sidewalks, or areas regularly used by the public, such as:

  • Roadway repair or construction.
  • Excavation near sidewalks.
  • Work on overhead signs or lighting above public walkways.

• Inherently Dangerous Work: Activities that are dangerous even when performed carefully, such as:

  • Blasting with explosives.
  • Demolishing large structures or working with high‑voltage electricity near the public.
  • Disposal of hazardous chemicals or medical waste.

  Many jurisdictions treat liability for inherently dangerous activities as a category of nondelegable duties: the principal cannot escape liability by outsourcing them.

• Special Relationships and Common Areas: Duties arising from special relationships in which the law demands a higher level of care, including:

  • Common carrier–passenger (e.g., bus companies subcontracting maintenance).
  • Innkeeper–guest.
  • Landlord–tenant with respect to common areas (hallways, stairwells, laundry rooms).

  In these settings, the landlord or carrier typically has a nondelegable duty to maintain safety in common areas used by many people.

• Shopkeepers and Premises Open to the Public: Businesses that invite the public onto their premises have a nondelegable duty to:

  • Inspect and maintain the premises in reasonably safe condition.
  • Provide adequate warnings or barriers during repairs or construction.
  • Keep aisles and entryways free of unreasonable slipping or tripping hazards.

A common MBE pattern: the store has outsourced cleaning, trash removal, or security to an independent contractor, and the contractor’s negligence injures a customer. The store’s duty to customers is nondelegable; the store is liable in addition to the contractor.

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.

Worked Example 1.3

A supermarket hires an independent contractor to install new lighting in the ceiling while the store remains open. The contractor negligently leaves a live wire exposed, and a customer is shocked and injured. The store exercised reasonable care in selecting the contractor. Is the store liable?

Answer:
Yes. The store’s duty to keep its premises reasonably safe for customers, including during renovations, is nondelegable. Even though the contractor is independent and carefully chosen, the store is vicariously liable for the contractor’s negligence in performing that duty. The contractor is also personally liable.

Inherently Dangerous Activities

“Inherently dangerous” work is work that carries a significant risk of serious harm even if the contractor uses reasonable care. The law does not allow a person who benefits from such activities to avoid liability by shifting them to a contractor.

Important points:

• Many courts treat inherently dangerous activities as a subcategory of nondelegable duties: the hirer remains liable for negligent performance of such activities.
• The duty is owed especially to persons foreseeably exposed to the risk (typically nearby members of the public).
• The liability in this context is still negligence‑based: the contractor must have been negligent in carrying out the work. (Strict liability for abnormally dangerous activities is a separate doctrine.)

On the MBE:

• Look for words like “blasting,” “demolition,” “hazardous chemicals,” “high‑voltage lines,” or “heavy crane operation in a crowded urban area.”
• If the contractor’s negligence in that activity injures a third party, expect both the contractor and the hirer to be liable.

Be careful not to confuse:

• Abnormally dangerous activities (strict liability even without negligence) with
• Inherently dangerous activities in this vicarious liability context (principal liable for contractor’s negligence because the duty is nondelegable).

Worked Example 1.4

An owner hires an independent contractor to conduct blasting to remove rock from a construction site near a busy road. Despite using industry‑standard precautions, debris flies onto the road and injures a passing motorist. The contractor was negligent in setting the charges. Is the owner liable?

Answer:
Yes. Blasting is an inherently dangerous activity. The owner has a nondelegable duty to ensure it is carried out safely and remains liable for the contractor’s negligence, even though the contractor is independent.

Worked Example 1.5

A shopping center hires an independent contractor to cut down a large, diseased tree overhanging a public sidewalk. The contractor fails to rope off the sidewalk and negligently drops a large limb on a passerby. The shopping center had no reason to suspect the contractor was careless. Is the shopping center liable?

Answer:
Yes. Removing a large tree over a public sidewalk creates a special, foreseeable risk to the public. The shopping center’s duty to protect pedestrians using the sidewalk adjacent to its premises is nondelegable, so it is vicariously liable for the contractor’s negligence.

Apparent Agency and Independent Contractors

Even when no nondelegable duty exists, a principal may be vicariously liable if the independent contractor appears to be the principal’s employee and the plaintiff reasonably relies on that appearance.

This is often tested with hospitals and physicians, but it can appear in other business contexts as well.

Under the apparent agency doctrine, an independent contractor will be treated as an employee if:

• The injured person accepted the contractor’s services based on a reasonable belief that the contractor was an employee or agent of the principal, and
• That reasonable belief was created by the principal’s manifestations (e.g., signage, uniforms, branding, advertisements), not merely by the contractor’s own statements, and
• The contractor’s negligence is a factual cause of harm within the scope of the services.

Key exam signals:

• The plaintiff goes to a branded facility (e.g., hospital, auto service chain, big‑box retailer).
• The tortfeasor wears the principal’s uniform or logo, uses the principal’s forms, and is presented as “our” doctor, mechanic, or technician.
• The principal never clearly informs the plaintiff that the tortfeasor is an independent contractor.

If instead:

• The principal gives clear, conspicuous notice that the worker is independent, and
• The plaintiff objectively should understand that (for example, signing forms acknowledging the independent‑contractor status),

then apparent agency is less likely to be found.

Worked Example 1.6

A patient goes to a hospital emergency room. The ER physician is an independent contractor, but wears a badge with the hospital’s logo, and all billing is done under the hospital’s name. The hospital never tells the patient the doctor is not its employee. The doctor negligently misdiagnoses the patient, causing harm. The patient sues the hospital.

Answer:
The hospital is likely vicariously liable under apparent agency. The hospital’s manifestations (logo, badge, billing) reasonably led the patient to believe the doctor was a hospital employee, and the patient accepted the services on that basis. Even if the doctor is technically an independent contractor, the hospital can be treated as an employer for vicarious‑liability purposes.

Worked Example 1.7

A national tire chain advertises “We Do It All In‑House” and uses technicians in company uniforms. In fact, the local store hires an independent contractor mechanic to install tires at night. A customer drops off a car, relying on the chain’s advertising and signage. The contractor negligently fails to tighten lug nuts, and the wheel comes off, injuring the customer. The store argues that the mechanic is an independent contractor.

Answer:
The tire chain is likely vicariously liable under apparent agency. Its advertising and branding reasonably lead customers to believe that the mechanics are its employees, and the customer relied on that appearance in using the service. The independent‑contractor label in the store’s internal contract does not defeat apparent agency.

Direct Liability: Negligent Selection or Supervision

Apart from vicarious liability, a principal may be directly liable for its own negligence in choosing or supervising an independent contractor.

• Negligent selection arises when the hirer fails to use reasonable care to select a competent contractor (e.g., hiring a roofer with no license or with a history of unsafe work when that information was easily discoverable).
• Negligent supervision or negligent retention may arise if the principal learns of the contractor’s dangerous conduct and fails to act (for example, continuing to use a contractor after repeated safety violations).

On these theories:

• The principal’s own conduct falls below the standard of care.
• Liability does not depend on any nondelegable duty or inherently dangerous work.
• The contractor’s status as independent does not insulate the principal from its own negligence.

Key Term: Negligent Supervision
A direct‑liability theory under which a principal is liable for failing to exercise reasonable care in monitoring, controlling, or discontinuing the services of a contractor once the principal knows or should know the contractor is likely to cause harm.

On the MBE, be careful:

• If the stem says the principal used reasonable care in selection and supervision, direct‑negligence theories are off the table; look instead for nondelegable duties or apparent agency.
• If the stem stresses that the principal ignored obvious red flags (prior accidents, lack of insurance, clearly incompetent contractor), think negligent selection or negligent supervision.

Worked Example 1.8

A warehouse owner decides to hire someone to repair its freight elevator. The owner never checks licenses, references, or insurance. In fact, the “contractor” has no license and no prior experience with elevators. The contractor performs a sloppy repair, and the elevator later falls, injuring a delivery driver. There is no statute making elevator maintenance a nondelegable duty in this jurisdiction.

Answer:
The warehouse owner can be directly liable for negligent selection. The owner failed to use reasonable care in selecting a competent contractor for potentially dangerous work. Even if the duty to repair the elevator is delegable, the owner’s own negligence in choosing an incompetent contractor can support liability.

Exam Warning

On the MBE, do not confuse vicarious liability for nondelegable duties with direct liability for negligent selection.

• Nondelegable duty: The principal is liable even if the contractor is competent and the principal was not negligent in selection or supervision.
• Negligent selection/supervision: The principal is liable because of their own negligence, regardless of whether the duty was delegable.

When answer choices offer both theories, pick the one that matches the facts:

• If the question emphasizes statutory duties, common‑area maintenance, public ways, or inherently dangerous work—even with careful hiring—look for nondelegable duty and vicarious liability.
• If the question emphasizes obvious incompetence, ignored complaints, or failure to check readily available information, look for negligent selection or supervision and direct liability.

Joint and Several Liability When Both Are Liable

When a nondelegable duty or apparent agency applies, both the principal and the independent contractor are liable for the same harm.

Key Term: Joint and Several Liability
Where multiple defendants are each liable for a single, indivisible harm, the plaintiff can recover the full amount of damages from any one of them, leaving defendants to seek contribution or indemnity among themselves.

Key consequences:

• The injured plaintiff may sue:
  • The contractor alone,
  • The principal alone, or
  • Both together.
• If the principal is held liable purely vicariously (that is, without any fault of its own), the principal usually has a right to indemnification from the negligent contractor.
• If the principal is also independently negligent (for example, negligent selection plus nondelegable duty), the principal may have only a partial right to contribution, depending on how fault is allocated.

On the MBE, if an answer choice suggests that the principal’s liability “replaces” the contractor’s liability, it is almost certainly wrong. The contractor is still liable for their own negligence; the principal’s liability is in addition.

Comparing the Exceptions: A Step‑by‑Step Exam Approach

When you see a tort committed by someone described as an “independent contractor,” proceed in this sequence:

1. Confirm status:

   • Is the tortfeasor clearly described as controlling the details of their work? If so, treat them as an independent contractor.

2. Apply the default rule:

   • Start from: principal not vicariously liable.

3. Check for nondelegable duties:

   • Is there a statutory duty, duty to keep public/common areas safe, or inherently dangerous work?
   • Is the injured person a member of the public or someone using affected property (customer, tenant, passerby)?

4. Check for inherently dangerous activities:

   • Blasting, hazardous waste, demolition, high‑risk construction, etc.
   • If yes, the principal likely has a nondelegable duty.

5. Check for apparent agency:

   • Did the plaintiff reasonably believe the contractor was the principal’s employee because of the principal’s manifestations and accept services on that basis?

6. Check for negligent selection or supervision:

   • Did the principal ignore obvious incompetence or danger in hiring or retaining the contractor?

7. Remember joint and several liability:

   • The independent contractor remains personally liable; the principal’s liability is in addition to, not instead of, the contractor’s.

Other Exceptions Briefly Noted

• Shopkeepers’ nondelegable duty to keep premises safe: A store cannot avoid liability for dangerous conditions in areas open to customers by outsourcing cleaning, maintenance, or security.
• Construction adjacent to public roads or sidewalks: A business or landowner who has such work performed by an independent contractor typically has a nondelegable duty to protect the public from foreseeable harm.
• Statutory nondelegable duties: Some statutes explicitly state that certain duties “may not be delegated” or that the owner “shall remain responsible” even when using contractors; those are classic nondelegable‑duty situations.

Revision Tip

If a question involves injury to the public, work affecting public ways, or a statutory safety duty, always consider whether the duty is nondelegable, making the principal liable for the contractor’s negligence—even if the contractor is independent and carefully chosen.

Key Point Checklist

This article has covered the following key knowledge points:

• The general rule: a hirer is not vicariously liable for independent contractors’ torts.
• Independent contractors are distinguished from employees based on the right to control the manner and means of work, along with other factors such as who supplies tools and how payment is structured.
• Nondelegable duties are a major exception: the principal remains vicariously liable for negligence in performing those duties even if an independent contractor is used.
• Common nondelegable duties include statutory public‑safety obligations, duties to maintain safe sidewalks and common areas, shopkeepers’ duties to customers, and inherently dangerous activities.
• Inherently dangerous activities (such as blasting or hazardous waste disposal) are often treated as a category of nondelegable duties.
• Apparent agency can make a principal vicariously liable when the principal’s manifestations lead a third party reasonably to believe an independent contractor is an employee and the third party relies on that appearance.
• Negligent selection and negligent supervision create direct liability for the principal’s own negligence and must be distinguished from vicarious liability based on nondelegable duties.
• When both principal and contractor are liable, joint and several liability allows the plaintiff to recover the full amount from either or both, with indemnity or contribution issues left to the defendants.
• On the MBE, you should systematically check for nondelegable duties, inherently dangerous activities, apparent agency, and negligent selection or supervision whenever an independent contractor injures a member of the public.

Key Terms and Concepts

• Independent Contractor
• Vicarious Liability
• Respondeat Superior
• Nondelegable Duty
• Inherently Dangerous Activity
• Negligent Selection
• Negligent Supervision
• Apparent Agency
• Joint and Several Liability