 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Hooker v. Department of Transportation1/31/2002
5; Elkins v. Arkla, Inc. (Ark. 1993) 849 S.W.2d 489, 490-492; Corsetti v. Stone Co. (Mass. 1985) 483 N.E.2d 793, 799; Clausen v. Aberdeen Grain Inspection (S.D. 1999) 594 N.W.2d 718, 721-723; Hittel v. Wotco, Inc. (Wyo. 2000) 996 P.2d 673, 676-678.)
The courts of states that have directly addressed it are evenly split on the question whether an employee of a contractor may sue the hirer of the contractor for negligent exercise of retained control.
Answering the question in the affirmative, the Supreme Court of North Dakota has stated the rule broadly. "Employees of an independent contractor fall within the protection of Section 414, and an employer of an independent contractor owes a duty to the independent contractor's employees to exercise the retained control with reasonable care." (Fleck v. ANG Coal Gasification Co. (N.D. 1994) 522 N.W.2d 445, 447 (Fleck).)
Taking a more nuanced position, the Supreme Court of Utah has held that a hirer is not liable to an employee of an independent contractor for negligent exercise of retained control, unless the hirer's conduct meets the active participation standard. (Thompson v. Jess (Utah 1999) 979 P.2d 322, 326-328 (Thompson).) "Under the `active participation' standard, a principal employer is subject to liability for injuries arising out of its independent contractor's work if the employer is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.]" (Id. at p. 327.) Therefore, retained control is somewhat of a misnomer for the doctrine as the Utah Supreme Court applies it. "Under the standards announced herein, a duty of care is imposed if the principal employer asserts affirmative control over or actually participates actively in the manner of performing the contracted work. `Retained,' to the extent the word implies passivity or non-action, is inapt." (Id. at p. 328, fn. 3.)
Like the North Dakota Supreme Court in Fleck, supra, 522 N.W.2d 445, the Supreme Court of New Mexico has voiced a broad theory of liability. "If [an employer of an independent contractor] has the right to, and does, retain control of the work performed by the independent contractor, he owes the duty of care to the independent contractor's employee which, if breached, can result in liability to the employee. [Citation.]" (Valdez v. Cillessen & Son, Inc. (N.M. 1987) 734 P.2d 1258, 1262.) However, the New Mexico Supreme Court announced this broad rule in a case in which the hirer's conduct would have more than satisfied the active participation standard announced by the Utah Supreme Court in Thompson, supra, 979 P.2d 322. An employee of a lathing and plastering subcontractor was injured in the collapse of scaffolding. A grant of summary judgment in favor of the hirer was reversed by the New Mexico Supreme Court because there was evidence in the record that the hirer had issued detailed directions to the subcontractor concerning virtually every aspect of the job, including the manner in which the scaffolding was to be erected, and that the hirer, through its superintendent at the jobsite, had "fired the employees of subcontractors, instructed employees on how, when, and where to do their jobs, and assigned employees to tasks other than those which they had been hired to do." (Valdez, at pp. 1262-1263.)
On the other hand, the courts of other states have concluded that an employee of an independent contractor is barred from suing the hirer of the
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 California Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|