I hired a contractor to repair the roof of my building. The contractor had erected a scaffold. A pedestrian walking under the scaffold was injured when part of the scaffolding had collapsed. The injured pedestrian now is suing me for this contractor’s negligence. Am I responsible for this accident?
It sounds like the type of case you are describing involves a commercial building. This is a common premises liability for an independent contractor question, and the answer may surprise you.
I will assume that you have insurance on the property. You should immediately notify your broker or insurance carrier about this claim. I have mentioned in prior posts that your insurance company could disclaim coverage if you do not notify it promptly of the claim.
Respondeat Superior
In a prior post to a similar question, I explained the doctrine of respondeat superior. That doctrine states that an employer is responsible for the acts of their employee. As long as the employee is acting in the scope of their duties, the employer is responsible for the employee’s actions, even if they are negligent.
In your particular case, you hired a contractor to do repairs on your building. That implies that this particular contractor was not your employee. The pedestrian that was injured by the faulty scaffolding is not protected by the Labor Law. The Labor Law is designed to protect only a particular class of construction workers. Random people walking by a construction site are not part of that class.
Exceptions to Premises Liability for an Independent Contractor
Therefore, the question remains if you as the building owner could be responsible for the acts of a contractor performing work for your building. Normally only employers are responsible for the acts of employees. Employers of independent contractors are generally not responsible. However, there are exceptions to this rule. So the answer to your premises liability for an independent contractor question could be yes.
An important court of appeals case addressed this issue. It outlined three types of exceptions to the rule that someone who hires another as an independent contractor is not responsible for their actions. The three exceptions are outlined in Kleeman v Rheingold, 81 NY2d 270, 598 NYS2d 149 (1993). See also Brothers v New York State Elec. and Gas Corp., 11 NY3d 251, 869 NYS2d 356 (2008) .
Negligent Selection of an Independent Contractor
One exception to the rule for responsibility for the negligence of an independent contractor is where the employer is negligent in selecting, instructing, or supervising the contractor. A common type of this case involves hospital liability. Most physicians are not employees of the hospital in which they work. They are independent contractors. However, the hospital could be responsible for the act of a physician under the theory that the hospital was negligent in selecting the particular physician. Bleiler v. Bodnar, 65 N.Y.2d 65, 489 N.Y.S.2d 885 (N.Y. 1985). (There is also another common theory of hospital liability based upon apparent authority. Even though physicians may be independent contractors in the hospital, there is a reasonable belief that the hospital — and not just the physician — is providing medical care. Thus the hospital is responsible for the negligent acts of the physician. Hill v St. Clare’s Hosp., 67 NY2d 72, 499 NYS2d 904 (1986))
Inherently Dangerous Work
A second exception for employer liability for the negligent act of an independent contractor is employment for work that is inherently or abnormally dangerous, Rosenberg v Equitable Life Assur. Soc. of U.S., 79 NY2d 663, 584 NYS2d 765 (1992). One common example of this type of case would be where an owner employs an independent contractor to do blasting.
In a similar case to this one, a construction worker had fallen from a scaffold onto a pedestrian on a sidewalk. The Court found the scaffold to be inherently dangerous. Thus, even though the building owner did not erect the scaffold, the owner was still responsible. Rohlfs v Weil, 271 NY 444 (1936).
Nondelegable Duty
Finally, the court also recognizes that an employer can be responsible for the negligent act of an independent contractor in which the employer is under a specific non-delegable duty. Kleeman v Rheingold, 81 NY2d 270, 598 NYS2d 149 (1993). (An attorney was found responsible for the negligent act of a process server who performed their duties negligently.) See also Pesante v Vertical Indus. Development Corp., 29 NY3d 983, 53 NYS3d 249 (2017) (a building owner has nondelegable duty to keep the premises safe and could be responsible for the negligent act of a security company.)
In your particular case, the building owner has a nondelegable duty to pedestrians walking on the adjacent sidewalk. Also, the scaffolding erected next to the building could be argued as inherently dangerous. Thus, you could potentially be responsible for this unfortunate accident. I would advise you to fully cooperate with anything that your insurance company or their lawyers request from you. Failure to cooperate with your insurance company is another basis that the carrier could disclaim coverage for this accident.
By James Santner
If you have questions about premises liability for an independent contractor or a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.