WHEN IS A BUSINESS LIABLE FOR NEGLIGENCE BY A SUBCONTRACTOR?

It seems like almost every business sub-contracts a lot of work out to other people.  When you go to the hospital, most doctors aren’t employees—they’re part of a separate medical ground that has a contract with the hospital.  Same thing with the nurses.

This is also true with at-home delivery services.  Amazon, FedEx, newspapers and many other “delivery” companies subcontract with other companies or hire “independent contractors” to do deliver product to customers’ homes.

What happens if one of these “independent contractors” hired by Amazon rear-ends your car and hurts your family?  Or, more pointedly, what happens if an independent contractor hits your car and doesn’t have adequate (or any) insurance?  Can you hold Amazon responsible?

Here’s the general rule: A principal (in this situation Amazon would be the principal) is not vicariously liable for the acts of an independent contractor.

The principal is liable, however, where the principal retains the right to control the manner and means of “independent contractor’s” work.  Washington has adopted the Restatement (Second) of Agency to determine whether the principal should be held responsible for the “independent contractor’s” negligence.  The factors considered are:

(a) the extent of control which, by the agreement, the principal may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

The factors listed are of varying importance in making the determination.

If you’re involved in an accident with a delivery person (or anyone else who may be an independent contractor with inadequate insurance) it’s essential to get an attorney involved right away.  It can make the difference between holding the principal responsible or just being left hanging out in the wind.

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