Independent Contractors: When is the Contracting Entity Liable for the Acts of Subcontractors?

The Maryland Court of Special Appeals in Jones v. Washington Suburban Sanitary Commission, has returned to the topic of independent contractors and when the hiring entity may be held responsible for the negligent act of the hired independent contractors. Plaintiff Jones was operating his motor vehicle on a public roadway in Maryland when he saw two individuals in the middle of the roadway leave the area as he approached their location. At that time, Mr. Jones traveled over a manhole which had been improperly sealed by the two individuals, resulting in personal injury to Mr. Jones and damage to his vehicle. The two individuals were employed by Video Pipe Services (“VPS”), a subcontractor of Inland Waters. Inland Waters was the general contractor hired by the Defendant, Washington Suburban Sanitary Commission ("WSSC"). WSSC contracted with Inland Waters to repair portions of the sewer system, and to assess the scope of the repairs needed.  Inland Waters subcontracted VPS to photograph the portions of the sewer system which required repair. 
 
WSSC argued they were not responsible for Mr. Jones' injuries for the following reasons: (1) the individuals were employed as independent contractors and not under the supervision of WSSC; (2) the injuries suffered by Mr. Jones were not injuries contemplated or foreseeable based on the contract between WSSC and Inland Waters and also with VPS; and (3) that WSSC should not be held responsible for the actions of a subcontractor hired by a General Contractor. The Court of Special Appeals rejected all of WSSC's arguments. 

Maryland's General Rule and the Relevant Exceptions
In general, a hiring entity of an independent contractor will not be liable for the contractor's acts or omissions which may result in personal injuries. However, there are a number of exceptions to this rule. The exceptions can be classified into three very broad categories: (1) the hiring entity was negligent in selecting, instructing or supervising the independent contractor; (2) the hiring entity has what is referred to as a "non-delegable duty" that is owed to the public or the specific plaintiff; or (3) the hiring entity is responsible for injuries caused by the independent contractor when the actions described in the contract are specially, peculiarly, and inherently dangerous.
 
The Court in Jones focused on exceptions (2), non-delegable duties, and (3) activities inherently dangerous to the public. One reason these exceptions apply in Jones is because the Defendant, WSSC, is a public water and wastewater utility service. Each of these exceptions have specific considerations and apply in limited circumstances; however, both are more commonly found when the contracting party is a government entity which is contracting for an action which involves the public.

When does the non-delegable duty exception apply? A non-delegable duty is a form of primary liability where the contracting party may be responsible for the acts of an independent contractor despite not having control or supervision of the independent contractor's actions. Non-delegable duties involve duties of care in the performance of an obligation for which a third party cannot be made responsible. A duty is "non-delegable" when the contracting party is obligated by law to uphold said duty. One common example is in premises liability cases as property owners have a specifically recognized duty they owe to invitees or licensees under the law. In cases where the contracting party is obligated by law to uphold a specific duty, the contracting party cannot outsource that duty pursuant to a contract with an independent contractor.

Jones further explained that "non-delegable duties" occur when injuries caused by independent contractors were foreseeable under the contract. As stated earlier, the contracting party is generally not responsible for any injury caused by an independent contractor that is collateral to the contract. A contracting party, however, will be held liable for injuries or harms caused by an independent contractor if the injury should have been anticipated under said contract. This is called a "collateral injury." Maryland Courts have further clarified that when the work contracted for is to be performed on a public roadway, the contracting party cannot disclaim responsibility. This duty conferred on a contracting party by law, which constitutes a "non-delegable duty."  
 
As for the “inherently dangerous activities” exception, Maryland has held that when the contracted activity poses a "high risk" of harm to the public, the duty cannot be outsourced or disclaimed under the contract. Maryland has explained that when there is a risk of harm involved in carrying out the contracted-for work, that work will be considered a "high risk." 
 
In Jones, the Court found that (1) WSSC contracted for work to be performed on a public roadway; (2) WSSC knew if the sewer lines were to be inspected for repair, the manhole covers would need to be removed; and (3) if WSSC knew the manhole covers would need to be removed without placing the appropriate warnings, the public would be at a high risk of harm. The Court also rejected WSSC's argument that they are not responsible for Mr. Jones' injuries because the manhole was removed by the subcontractor of Inland Waters. Regardless of whether there was a direct contract between WSSC and VPS, the Court ruled WSSC could not escape responsibility as a matter of law.

What Does This Mean for Entities Hiring Independent Contractors?
This case reaffirmed Maryland's very broad categories which allow a contracting party to be held responsible for an independent contractor's negligence. Maryland Courts will be very reluctant to grant motions for summary judgment filed by hiring entities who disclaim responsibility for work performed by independent contractors in circumstances like the above. Specifically, the Courts will deny a motion for summary judgment filed by a hiring entity when the work contracted for involves a public roadway or the public's use of a roadway. Maryland Courts have noted explicitly that work performed on public roadways carries a "non-delegable duty" of care to the public using said roadways. It is important to consider these exceptions when the insured is a public utility service company or a government entity contracting for work to be performed in a very public location (i.e. roadways). Similarly, the Court will not grant a hiring entity's motion for summary judgment based on the argument that the entity did not directly contract with the subcontractor who ultimately caused the injury if the negligence involved work which was to be performed under the contract or if the harm was foreseeable based on this work.
 

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