Hire With Care

HIRE WITH CARE

By: Larry R. Leiby, Esq. and Robert S. Tanner, Esq.

About the Author: Larry Leiby, Esq. was the founder and first chairman of the Florida Bar Construction Law Committee in 1976. He is the author of the Florida Construction Law Manual. He is Board Certified in Construction Law and was on the Construction Law Certification Committee that creates and grades the tests for construction law board certification. He was awarded the lifetime achievement award by the Florida Bar Construction Law Committee and teaches construction law at the Florida International University College of Law. He can be reached at leiby@mkpalaw.com. For more information, please visit www.mkpalaw.com.

In Davies v. Commercial Metals Company, 2010 WL 3446143 (Fla. 5 th DCA Sept. 3, 2010), Matthew Davies ("Plaintiff") was seriously injured when his vehicle collided with the rear of a tractor-trailer that was reentering the highway from the shoulder. The tractor-trailer was owned by C&W Trucking ("Independent Contractor") and was hauling a heavy load of scrap metal for Commercial Metals Company ("Employer"). Plaintiff sued Independent Contractor, the individual who was driving the tractor-trailer, and Employer.

In Florida, the general rule is that one who employs an independent contractor is not liable for the independent contractor's negligence because (or when) the employer does not control the manner in which the work is done. However, a cause of action for negligent retention is a recognized exception to the general rule.

In the lawsuit, Plaintiff asserted that Employer negligently hired and retained Independent Contractor, specifically alleging that (a) on one or more occasions Employer knew or should have known that Independent Contractor carried Employer's good "in violation of the 'hours of service' regulations under the FMCSR [Federal Motor Carrier Safety Regulations]", (b) that Employer knew or should have known of Independent Contractor's poor safety record, (c) that Employer breached the duty owed to Plaintiff by failing to fire Independent Contractor and by failing to remedy the situation, thereby shipping its goods "knowing that they were being shipped in violation of the FMCSR and at great hazard to the motoring public, including Plaintiff Matthew Davies", (d) who was injured as a result of Employer's negligence.

To succeed on a negligent hiring claim, a plaintiff must plead and prove that: (1) the hired party was incompetent or unfit to perform the work; (2) the employer knew or reasonably should have known of the particular incompetence or unfitness; and (3) the incompetence or unfitness was a proximate cause of the plaintiff's injury. The law also requires that "the contractor must have been hired (a) to do work involving a risk of harm unless skillfully and carefully done, or (b) to perform any duty owed by the employer to third persons."

Although Plaintiff Davies' complaint sufficiently alleged a cause of action for negligent retention, the trial court granted summary judgment to Employer. The appellate court upheld that ruling, finding that Plaintiff and Employer essentially agreed to all of the material facts of the case and that those facts did not support the allegations Plaintiff had made in its complaint.

The takeaway is to be careful in hiring independent contractors. Where you hire an independent contractor to perform work that involves a risk of harm unless skillfully and carefully done (even if as simple as operating a motor vehicle) or to perform a duty that you owe to others (such as a landlord's duty to a tenant to non-negligently make repairs). If you have knowledge or a basis to believe that the one you are hiring is unsafe, you might be held liable.