## Facts

- A manufacturing plant experienced repeated theft and vandalism by trespassers.
- The plant hired a private security company to provide uniformed guards to deter theft and vandalism and to check the premises during designated hours.
- The security contract did not specify whether guards would be armed, and the plant did not direct the security company on how to perform the protection work.
- The plant’s superintendent observed guards carrying firearms at the site and knew of a prior incident in which a guard discharged a weapon on the premises; the plant did not instruct that guards be unarmed.
- A security guard employed by the contractor brought a firearm to work and used it during an encounter with two individuals near the plant’s parking lot.
- After a verbal confrontation, the guard retrieved the gun, displayed it, and then shot one of the individuals, killing him.
- The decedent’s estate sued the guard, the security company, and the plant owner for wrongful death and survivorship damages.
- The guard and security company settled; the plant owner remained as the principal defendant.

## Issues

1. Whether the plant owner could be vicariously liable for the negligence of a security guard employed by an independent contractor under the inherently dangerous work/nondelegable duty doctrine.
2. Whether providing private security to deter theft and vandalism, where armed guards are used in practice, can qualify as inherently dangerous work creating a nondelegable duty.
3. Whether the trial court erred by directing a verdict for the plant owner on the ground that independent-contractor status categorically barred vicarious liability.

## Decision

- The Ohio Supreme Court reversed the judgment affirming a directed verdict for the plant owner and remanded for further proceedings.
- The Court held that the general rule of nonliability for independent contractors is subject to an exception for inherently dangerous work imposing a nondelegable duty.
- The Court concluded that the contracted security work—contemplating confrontations with trespassers and involving armed guards in practice—could constitute inherently dangerous work.
- Because a reasonable jury could find the exception applicable and could find proximate causation, the case should not have been removed from the jury by directed verdict.

## Legal Principles

- An employer is generally not vicariously liable for the negligence of an independent contractor or its employees.
- A nondelegable duty may be imposed when the work involves a risk of physical harm inherent in the work itself, creating a peculiar risk requiring special precautions.
- When a duty is nondelegable, delegating performance to an independent contractor does not relieve the hirer of liability for negligence in performing that duty; the contractor remains independently liable for its own negligence.
- Contracting for security services that foreseeably involve potentially violent confrontations, including the use or display of firearms, may constitute inherently dangerous work for purposes of the nondelegable-duty exception.
- Where evidence supports the applicability of the inherently dangerous work exception, vicarious-liability questions and causation ordinarily present issues for the factfinder rather than resolution by directed verdict.

## Conclusion

The court held that hiring private security to deter theft and vandalism, where armed guards are used and violent confrontations are foreseeable, can be inherently dangerous work imposing a nondelegable duty; therefore, independent-contractor status did not automatically bar vicarious liability, and the directed verdict for the hirer was reversed and remanded for factfinding on negligence and causation.


Pusey v. Bator, 94 Ohio St. 3d 275, 762 N.E.2d 968 (Ohio 2002)