Part 2: If an Independent Contractor Disclaims
Responsibility for the Actions of its Employee
This three-part series examines efforts by the plaintiffs’ bar to hold companies liable for the torts of their independent contractors’ employees. The first post addressed the “control test” that many jurisdictions use to determine whether a company can be held vicariously liable for the conduct of its independent contractor’s employees. This post considers the possibility that an independent contractor may disclaim responsibility for its employee’s actions. The final post will look at allegations that the company and the independent contractor were engaged in a joint venture giving rise to vicarious liability.
When something goes wrong, lawsuits are often filed against any person or entity that was anywhere near the events at issue. For example, when a worker employed by an independent contractor is involved in an accident, claims are often filed against (1) the worker, (2) the independent contractor employing him or her, and (3) the company that hired the independent contractor. Depending on the relationship between those parties, the independent contractor may assert the defense that the worker was under the control of the company, rather than the contractor, such that any vicarious liability should run to the company only. When that happens, there is typically a factual dispute over which party was in control of the worker’s actions “when the incident occurred.” CACI 3706.
This situation implicates related doctrines that are often called the “borrowed servant” or “special employment” rules. Just as ordinary vicarious liability claims under a respondeat superior theory look to whether the act occurred within the course and scope of a tortfeasor’s employment, liability under these doctrines depends on who exercised control over the worker at the time he or she engaged in the conduct at issue. The cases refer to the worker’s actual employer (the independent contractor) as his or her “general” employer, and to the company alleged to have exercised control over the worker’s employees at the relevant time as the worker’s “special” employer. Where the so-called special employer exercised sufficient control over a worker at the time of the relevant conduct, the “special employer” may be vicariously liable, in full, for the acts of a particular worker the company neither hired nor paid directly. See, e.g., Montague v. AMN Healthcare, Inc., 223 Cal.App.4th 1515, 1520 (2014) (“A general employer is absolved of respondeat superior liability when it has relinquished total control to the special employer. During this period of transferred control, the special employer becomes solely liable under the doctrine of respondeat superior for the employee’s job-related torts.”).
One obvious question is whether two different entities or persons can jointly be liable for the torts of a worker under the control of both. The answer varies by context and jurisdiction. For example, in Marsh v. Tilley Steel Co., the California Supreme Court held that the conduct of a crane operator employed by the defendant, but temporarily “loaned” to another company at the job site at the time of the accident, could create liability for both companies. 26 Cal. 3d 486, 491 (1980). The Court held that:
the jury need not find that [the worker] remained exclusively defendant’s employee in order to impose liability on defendant. Facts demonstrating the existence of a special employment relationship do not necessarily preclude a finding that a particular employee also remained under the partial control of the original employer. Where general and special employers share control of an employee’s work, a ‘dual employment’ arises, and the general employer remains concurrently and simultaneously, jointly and severally liable for the employee’s torts.
Id. at 494-95 (emphasis added).
By contrast, in Kitto v. Gilbert, the Colorado Supreme Court held that an operating surgeon and a hospital could not both be liable for the conduct of hospital personnel assisting in surgery under the surgeon’s control. 570 P.2d 544, 550 (Colo.App. 1977) (“Although conceivably both the operating surgeon and the hospital could be simultaneously liable under respondeat superior for the negligence of a hospital employee assisting in an operation . . . , Colorado has restricted potential liability to either the one or the other.”).
As with vicarious liability generally, these issues present more significant challenges for companies who work closely with independent contractors, and even supervise contractors’ employees. As a practical matter, an independent contractor having an ongoing relationship with a company may be disinclined to “throw the company under the bus,” so to speak, by disclaiming responsibility for its employee’s actions. And depending on the indemnification arrangement between the company and the contractor, it might not ultimately matter who is held liable in the tort case. But any company that often supervises employees of independent contractors should be mindful of that fact that vicarious liability may arise on a very time- and task-specific basis.
Andrew Orr routinely defends companies against vicarious liability claims based on the alleged torts of independent contractors’ employees.