The Devil is in the Details: Retained Control and Vicarious Liability for an Independent Contractor’s Negligent Acts

The element of control is a key consideration when determining whether or not an employer can be held liable for the negligent acts committed by an independent contractor during the course of work for an employer.  From a liability perspective, employers may decide to hire an independent contractor over an employee due to a decreased likelihood for liability for the negligence or intentional acts or omissions of the independent contractor.[1]  As an independent contractor generally is free to achieve results in whatever manner she deems fit, she is not controlled by the employer as to the means and methods by which she performs her work.[2]  Because of the lack of control the employer has over the independent contractor’s work, an employer generally cannot be held vicariously liable for any negligent acts committed by the independent contractor.

The general rule insulating employers from liability for torts committed by independent contractors is not without its limits.  An employer can be held liable for the torts committed by its independent contractor where it retains a certain degree of control over the details of the independent contractor’s work.[3]  Whether or not an employer has retained control of an independent contractor’s work can be determined in one or more of the following ways:

1.) The terms of the contract between the parties;

2.) The employer’s degree of supervisory control over the independent contractor’s work; and/or

3.) The employer’s degree of operational control over the independent contractor’s work.[4]

Either one of the aforementioned elements of retained control alone, or, alternatively, a combination of all three can result in an employer being held vicariously liable for the negligent acts of its independent contractor.

First, the parties’ contract can expressly set forth terms that establish the employer retained control over an independent contractor’s work. The determination of retained control, however, is less clear with respect to supervisory and operational control.

Retained supervisory control relies upon a determination of whether or not the employer supervised or maintained an extensive work site presence over the contractor’s work.[5]  It is important to note that regular visits to a work site do not qualify as maintaining an “extensive work site presence,” where such visits are primarily intended as check-ups on the independent contractor’s work progress rather than as a means to supervise the contractor’s work.[6]  Retained operational control, on the other hand, requires a determination of whether or not the contractor is “free to perform the work in its own way, which personnel provided supplies and gave direction to the workers, and whether the employer was present during the [negligent] incident.”[7] Where an employer has a greater say in how the independent contractor completes its job, there is an increased likelihood for a finding that the employer retained operational control over the independent contractor’s work.

In Lee v. Six Flags Theme Park, the appellate court for the First District held that an employer retained no control over an independent contractor’s work where the independent contractor was responsible for the provision of equipment, for the method in which it completed its project of dismantling a theme park ride, and where the parties’ contract reflected the same. [8]

An employer’s lack of control over an independent contractor’s work is inversely proportional to its risk of liability for the independent contractor’s negligent acts while working for the employer.  While an employer may have less concerns of tort liability while working with an independent contractor compared to working with an employee, employers should still be alert and cautious with respect to the element of retained control.