What the Heck is an Independent Contractor? Part V: When Employers Are Liable for Tortious Acts of Independent Contractors

By Andrew D. Randol - July 8, 2019 - Employment & Labor

In Part IV of What the Heck is an Independent Contractor? our Columbus employment lawyer explained the test courts use to determine whether a worker is an employee or an independent contractor for purposes of tort liability. This is known as the right to control test. Generally, if an employer has the right to control the manner and means of the work, then the court will consider the worker to be an employee. If an employee negligently injures another person while performing his or her work duties, then the employer will generally be held liable for the employee’s actions.

Companies are generally not held liable for the negligent acts of their independent contractors. However, there are some exceptions to this rule. Companies can be held liable for the negligent acts of independent contractors under the nondelegable duty doctrine.[1] One example of a nondelegable duty is inherently dangerous work.

The Ohio Supreme Court has held that “work is inherently dangerous when it creates a peculiar risk of harm to others unless special precautions are taken.”[2] When work is inherently dangerous, “the employer hiring the independent contractor has a duty to see that the work is done with reasonable care and cannot, by hiring an independent contractor, insulate himself or herself from liability for injuries resulting to others from the negligence of the independent contractor or its employees.”[3]

For example, in the case Pusey v. Bator, the Ohio Supreme Court held that hiring armed security is considered to be inherently dangerous work.[4] In that case, Grief Brothers Corporation contracted with Youngtown Security Patrol, Inc. (“YSP”) to provide security guards to deter theft and vandalism of company property.[5] Some of the security guards were armed with guns.[6]

In August of 1991, one of YSP’s security guards was on duty after hours on the Grief Brothers Corporation’s property. The security guard confronted two trespassers on the property and a verbal altercation ensued.[7] The security guard retrieved his firearm, raised it, and ordered the two trespassers to lie down on the ground with their arms out.[8] One of the trespassers made a quick movement, “like he was reaching for something in his back pocket.” The security guard fired a shot at the man which struck him in the back of the head, ultimately killing him.[9]

The mother of the man sued the security guard, YSP, and Grief Brothers.

The trial court held that the security guard was an independent contractor of Grief Brothers. Thus, the trial court would not allow Grief Brothers to be held liable for the security guard’s actions.

On appeal, the matter ultimately reached the Ohio Supreme Court, which reversed the trial court. The Ohio Supreme Court agreed that the security guard was an independent contractor. However, it also held that Grief Brothers could still be held liable for the security guard’s actions because an armed security guard’s duty is considered to be inherently dangerous.

The court reasoned that an armed security guard tasked with deterring thieves and vandals may be required to confront suspicious persons in the course of the security guard’s duties. Thus, the duties contemplate a confrontation between an armed guard and persons entering a property.[10] Because this is inherently dangerous, the court held Grief Brothers could be liable for the guard’s actions, even though he was considered to be an independent contractor and not an employee.

Almost every general rule in our legal system has important exceptions. Consulting with an employment attorney in Columbus Ohio can greatly minimize an employer’s potential liability. Whether its appropriately classifying employees or planning to limit liabilities through the use (or non-use) of independent contractors, retaining a Columbus employment lawyer now can save your business big in the long run.

[1] Pusey v. Bator, 94 Ohio St. 3d 275, 279, 2002-Ohio-795, 762 N.E.2d 968.

[2] Id.

[3] Id. at 279, 80.

[4] Id. at 281.

[5] Id. at 276.

[6] Id.

[7] Id. at 276, 78.

[8] Id. at 277.

[9] Id. at 277, 78.

[10] Id. at 281.


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