I would suspect that few employers know that they can get sued for negligently hiring
someone to do work on their behalf. If the employer fails to use reasonable care in the selection
and someone is hurt, that person may bring a direct action against the employer. The suit would
claim negligence.
Cheer up – the court has used a rather low standard of care when looking at these issues.
New Hampshire has cited with approval the Restatement of Torts §411, Comment C. That
section says: ……(o)ne who employs a carpenter to repair the ceilings of his shop or (a plumber)
to install plumbing in his hotel is entitled to assume that a carpenter or plumber of good
reputation is competent to do such work safely. In such case, there is not duty to make an
elaborate investigation as to the competence of the carpenter or plumber. Indeed, there is not
duty to take any great pains to ascertain, whether his reputation is or is not good. That fact that
he is a carpenter or plumber is sufficient, unless the employer knows that the contractor’s
reputation is bad or knows of facts, which lead him to realize that the contractor is not
competent.
The situation changes a bit when the work to be done involves inherently dangerous
work. When a dangerous task is being performed, the employing company has a special duty to
use reasonable care in selecting an independent contractor to do the work. Precautions need to be
taken to avoid injury to others. This type of duty can’t be escaped by turning the performance of
the duty over to a contractor.
Whether an activity is inherently dangerous or not is a question of fact. To qualify, the
work must be dangerous in and of itself and not dangerous merely because of the negligent
performance of the work. The danger is inherent – so it is present from the outset.
I will leave you with Rodney Dangerfield’s words as he gave the commencement speech
in Back to School.
I have only one thing to say to you today …
It’s a jungle out there.
You gotta look out for number one.
But don’t step in number two.
And so, to all you graduates, as you go out into the world, my advice to you is …
Don’t go! It’s rough out there! Stay in school!