Contractor Liable for Mistakes of Subcontractor

The rule that the party hiring an independent contractor is normally not liable for tortious acts of the contractor does not apply if the subcontracted activity is inherently dangerous, such as the removal of asbestos. The facts of the below case are true, and as you will see, the contractor who hired the independent contractor was liable for the independent contractor’s negligence.

Recently, Lida Harkins endured a homeowner’s nightmare. She contracted with Colonial Floors, Inc. (“Colonial”) to place a new vinyl linoleum floor in her kitchen. Colonial hired a subcontractor to install the new floor. The subcontractor removed the old flooring, then sanded a rough part of the floor left uneven by its removal. As a result of the subcontractor’s negligent, indeed reckless, removal of the old linoleum, asbestos fibers contained in the old flooring were released into the house, thereby contaminating nearly the entire home. When Ms. Harkins returned home from work, she noticed a thin dust layer covering all her furniture. Ms. Harkins was forced to abandon her home and retain an environmental service company to decontaminate her home and ensure that the asbestos levels in the house were safe for occupancy. The service provided a plan, approved by the Massachusetts Department of Environmental Protection which in a nutshell provided that the house be sealed, all porous objects be discarded and nonporous material be cleaned. Her forced exodus from her home lasted nine weeks. After Ms. Harkins was allowed to return to her home, few of their possessions were left. All furniture with fabric or unvarnished wood, wallpaper, carpets, clothing, mattresses, books, food and everything else that was porous had been thrown out and sent to a landfill as asbestos material. The house was essentially a shell; they had lost most all of their worldly possessions from the contamination.

The subcontractor worked mainly but not solely for Colonial. The subcontractor never informed Ms. Harkins that it was a subcontractor. In fact, after the subcontractor’s first day of work, it left a note with Ms. Harkins on Colonial stationary. In light of all the circumstances, Ms. Harkins reasonably understood that the installer (subcontractor) was an employee of Colonial.

Ms. Harkins sued Colonial and Colonial’s president personally, based in breach of contract and negligence among other counts. With regard to a breach of contract claim, the court found in favor of Ms. Harkins. The court noted that the work performed was not what the contract stated. Further, since the subcontractor did not inform Ms. Harkins that it was an independent contractor and even signed a note on Colonial’s stationary, the subcontractor acted with apparent authority on behalf of Colonial and as such Colonial is responsible contractually for its conduct. Further, under the law, the obligation to fulfill the contract belonged to Colonial. Under contract law, it is irrelevant who Colonial directed to perform that obligation, because Colonial remained liable whether the failure was caused by an employee or an independent contractor.
With regard to a negligence claim Colonial was found liable for the negligence of its subcontractor. The court noted, the president of Colonial did nothing to guard against the foreseeable risk of asbestos contamination when he understood his subcontractor was going to remove the old flooring. Under the doctrine of respondeat superior, Colonial is legally responsible for the negligence of its President and employee occurring within the scope of his employment.

Although the general rule is that the employer of an independent contractor is not liable for the harm cause by a tortious act or omission of the contractor, that general rule is riddled with exceptions. For example, where the nature and circumstances of the work to be performed are such that injury to others will probably result unless precautions are taken, the employer is answerable for the failure of an independent contractor to take such precautions. The removal of asbestos falls within that exception as asbestos is a hazardous material potentially damaging to one’s health.
The court held that Colonial cannot retain independent contractors, rather than employees, to remover linoleum containing asbestos, with all the dangers posed by such removal, and then evade liability for the consequences resulting from such inherently dangerous conduct.

With regard to the personal liability of the president, the court stated the doctrine of respondeat superior where a corporation is liable for the negligence of its employees does not mean that a corporate employee is free from personal liability for misconduct done within the scope of his employment. Rather, a corporate employee remains personally liable for torts that he personally committed, regardless of whether or not that tort is committed within or outside the scope of his employment. The court found the president liable personally in approving the removal of Ms. Harkins’ linoleum without first ensuring that it was tested for asbestos and for negligently failing to properly supervise the subcontractors when he learned they were about to embark on the removal of linoleum that may have contained asbestos.

In conclusion, when a contractor hires a subcontractor, if the subcontracted activity is inherently dangerous, such as the removal of asbestos, the hiring contractor is liable for the tortious acts of the subcontractor. The hiring contractor will not likely be able to claim the subcontractor was an independent contractor and therefore the hiring contractor is not liable. This argument may prevail if the hiring contractor takes careful steps to insure the independent contractors’ work is done is a safe, proper, non negligent manner, guarding against foreseeable risks; and that the party to whom work is being conducted understands that the workers are independent and assent to the same.