An employer will generally be held vicariously liable for the negligent actions of his employees (under what’s called the doctrine of respondeat superior).
Example: I suffer a broken arm while pumping iron at Planet Fitness after slipping and falling on a spilled protein shake. A Planet Fitness employee was negligent in failing to clean up the spilled protein shake. Can I bring a negligence action against Planet Fitness itself? YES. Planet Fitness is vicariously liable for the negligent actions of its employees.
Independent Contractors
An employer will generally not be held vicariously liable for the negligent actions of independent contractors hired by the employer.
Example: I hire a roofer to fix the chimney on the roof of my home. The roofer rests a very tall ladder against the side of my house in a very unstable position, and leaves it unattended while he breaks for lunch. The ladder then falls over and injures my neighbor. Am I vicariously liable for my neighbor’s injuries? NO. The roofer was clearly negligent, but he is an independent contractor and not my employee. I am not vicariously liable.
Property Held Open to the Public
There is a very important exception to the general rule that employees are not vicariously liable for the negligent actions of independent contractors:
An employer whose premises is held open to the public will be held vicariously liable for the negligent actions of an independent contractor it hires. The duty of an employer to keep its premises safe for the public is considered nondelegable.
Example: Planet Fitness hires a sign company to erect a stylish new Planet Fitness sign on the wall. The sign company is negligent in using materials that are unsound. A piece of the sign breaks off and hits me while I am on the StairMaster, injuring my leg. Do I have a cause of action against the employer, Planet Fitness, for negligence? YES. Planet Fitness has a duty to keep the property safe for the public, and this duty is nondelegable. Planet fitness is holding its premises open to the public, so it does not matter whether a Planet Fitness employee or an independent contractor hired by Planet Fitness is negligent. Planet Fitness will be vicariously liable either way.
Understand
- Employers are generally vicariously liable for the negligence of their employees.
- Employers are generally not vicariously liable for the negligence of independent contractors they hire
- If the employer’s premises is held open to the public, the employer will be held liable for the negligent actions of an independent contractor the employer hires. The duty to keep the premises safe is considered to be nondelegable.
- If you encounter the issue of employer liability for the negligent actions of an independent contractor on the MBE, make sure you carefully read the fact pattern to determine whether the employer’s premises was being held open to the public.