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Thompson v. Jess3/12/1999
l Precautions "One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise. ". . . . "§ 427. Negligence as to Danger Inherent in the Work "One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger." Restatement (Second) of Torts §§ 416, 427 (1965).
The purpose of these sections is "to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work on the land would not have to depend on the contractor's solvency in order to receive compensation for the injuries." Privette, 854 P.2d at 725. Privette held that this purpose is not advanced when these exceptions are applied in favor of a contractor's employees who are covered by workers' compensation. See id. at 726-30; see also Wagner, 421 N.W.2d at 840-44 (detailing reasons for not adopting sections 413, 416, and 427 in favor of employees of independent contractors).
We agree with Privette and Wagner and decline to apply section 413, 416, or 427 of the Restatement in the manner Thompson proposes. Whether based on direct negligence under section 413 or vicarious liability under sections 416 and 427, these provisions have no application when the injured person is an employee of the independent contractor undertaking the allegedly dangerous work. The majority of jurisdictions that have examined this issue have decided likewise.
Along with Privette and Wagner, Zueck v. Oppenheimer Gateway Properties, 809 S.W.2d 384 (Mo. 1991) (en banc), is representative of those decisions. As expounded in Zueck, if employees of an independent contractor are allowed to avail themselves of the peculiar risk doctrine or inherently dangerous work exception, the principal employer is placed in an untenable position: he or she must anticipate activities that are "inherently dangerous" to the contractor's employees and, if the dangers inhere to the manner in which the work is done, protect against such dangers despite the fact that the employees are best able to identify and address whatever hazards are involved in their own method of performance. Oftentimes, both the risks involved and the protections necessary to avoid the risks are beyond the principal employer's knowledge or capacity. Thus, to avoid the liability imposed by the peculiar risk doctrine or inherently dangerous work exception, the principal employer has an incentive to direct his or her own employees to do the work despite their lack of expertise. Such a choice would limit the principal employer's exposure to that under the Workers' Compensation Act but, at the same time, increase the risk of injury to the principal's employees and innocent third parties. Placing principal employers in such a position distorts the objectives of tort law, and for that reason, the peculiar risk doctrine or inherently dangerous work exception should not apply in favor of employees of the independent contractor performing the work. See Zueck, 809 S.W.2d at 387-88.
In addition, sections 413, 416, and 427 each s
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