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Thompson v. Jess3/12/1999
peak of liability for injury "to others," which implies third parties rather than employees of the independent contractor carrying out the contracted work. An early draft of the Restatement included a special note which, though ultimately not adopted, provided guidance on this point:
"Special Note. The rules stated in this Chapter are, in general, not applicable to make the defendant who hires an independent contractor liable to two classes of persons. "One consists of the employees, or servants, of the defendant himself. . . . "The other class of plaintiffs not included in this Chapter consists of employees of the independent contractor. . . . One reason why such responsibility has not developed has been that the workman's recovery is now, with relatively few exceptions, regulated by workmen's compensation acts. . . . While workmen's compensation acts do not infrequently provide for third-party liability, it has not been regarded as necessary to impose such liability upon one who hires the contractor, since it is expected that the cost of the workmen's compensation insurance will be included by the contractor in his contract price for the work, and so will in any case ultimately be borne by the defendant who hires him." Restatement (Second) of Torts (Tent. Draft No. 7, Apr. 16, 1962) ch. 15, special note at 17-18.
The American Law Institute omitted this note due to lack of uniformity of the effect of the various state workers' compensation acts but indicated nonetheless that "certainly the prevailing point of view is that there is no liability on the part of the employer of the independent contractor." 39 A.L.I. Proc. 244, 247 (1962); see also Monk v. Virgin Islands Water & Power Auth., 53 F.3d 1381, 1390-91 (3d Cir.), cert. denied, 516 U.S. 914 (1995) (referring to same language of tentative draft of Restatement).
The rationale set forth in the special note quoted above is persuasive and provides additional support for our holding that sections 413, 416, and 427 of the Restatement have no application to employees of independent contractors performing the work at issue. The phrase "to others" in these sections does not encompass such employees, but rather, innocent third parties. This is consistent with the analysis in Dayton and with Tenth Circuit case law applying Dayton to this issue. See Eutsler v. United States, 376 F.2d 634, 636 (10th Cir. 1967) (concluding that phrase "to others" as contained in Restatement § 413 does not include employees of independent contractors); see also United States v. Page, 350 F.2d 28 (10th Cir. 1965), cert. denied, 382 U.S. 979 (1966) (acknowledging that general law on subject reaches same Conclusion as to Restatement § 427).
Holding otherwise would create unfair and anomalous results under Utah's workers' compensation system:
"Courts and legal commentators have expressed concern that to allow an independent contractor's employees who incur work-related injuries compensable under the workers' compensation system to also seek damages under the doctrine of peculiar risk from the person who hired the contractor would give those employees an unwarranted windfall. As these authorities point out, to permit such recovery would give these employees something that is denied to other workers: the right to recover tort damages for industrial injuries caused by their employer's failure to provide a safe working environment. This, in effect, would exempt a single class of employees, those who work for independent contractors, from the statutorily mandated limits of workers' compensation." Privette, 854 P.2d at 729.
Furthermore, given that the exclusive remedy provision of the workers' compensation scheme limits
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