Note: This article only addresses defendants that are without fault and whose liability can only be vicarious. Theories of direct liability, like when the defendant negligently hires, selects, or fails to supervise an independent contractor, are outside the scope of this article. Apparent Agency A defendant is vicariously liable for the acts of its independent contractor if they are committed within the independent contractor’s apparent agency. Roessler v. Novak, 858 So. 2d 1158, 1161 (Fla. 2d DCA 2003). One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants. Rest (2d) Torts §429 (emphasis supplied); Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So.2d 55, 60 (Fla. 4th DCA 1982) (applying §429 against a hospital for the negligence of an independent contractor, a non-employee ER physician). Put another way, apparent agency is authority that the defendant knowingly tolerates or permits through its own actions or words. The rationale for apparent agency is based on estoppel: a defendant should not be able to deny that the independent contractor had authority when (1) the defendant’s conduct gives the appearance of authority, (2) the plaintiff justifiably relies on that representation of authority, and (3) the plaintiff changes its position accordingly. Roessler, 858 So.2d at 1161. Apparent agency only exists when the defendant creates the appearance of agency, not the apparent agent. Roessler, 858 So.2d at 1162. So the focus is on what the defendant said and did, not what the apparent agent said and did. Apparent agency is generally a jury question. Robbins v. Hess, 659 So.2d 424, 427 (Fla. 1st DCA 1995). Contractual and Statutory Duties Although a party to a contract or subject to a statute can always subcontract the performance of its duty to an independent contractor, if the duty is “non-delegable,” it cannot avoid liability for the negligent performance of that duty by its independent contractor. Arminger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864 (Fla. 2d DCA 2010) (because a landowner’s statutory duty to maintain its premises in reasonably safe condition is non-delegable, it cannot avoid liability for the ngeligence of an independent contractor hired to maintain and clean its premises). Gordon v. Sanders, 692 So. 2d 939 (Fla. 3d DCA 1997), is helpful here. The plaintiff hired the defendants to remove trees from her property. The defendants subcontracted the tree removal work to an independent contractor without the plaintiff’s knowledge or consent. The independent contractor then damaged the plaintiff’s home while removing a tree. The
plaintiff sued the defendants for breach of contract. The court determined that under the non-delegable duty exception, the defendants breached the contract and were liable for the independent contractor’s negligence in performing their contract obligations to the plaintiff. Where the contracting party makes it his duty to perform a task, he “cannot escape liability for the damage caused to the other contracting party by the negligence of independent contractors hired to carry out the task.” Id. at 941 (emphasis in original). Although many of the cases that deal with this exception focus on the language of the contract to determine if a duty was non-delegable, interestingly, in Gordon, the court did not cite any specific provision of the contract showing that the defendants’ tasks were non-delegable. Inherently Dangerous Activity One who employs an independent contractor to perform “inherently dangerous activity” is vicariously liable for the contractor’s negligence in failing to take reasonable precautions to protect against the danger. American Home Assurance Co. v. National Railroad Passenger Corp., 908 So. 2d 459, 468 (Fla. 2005) (citing Rest (2d) Torts § 427). An activity is “inherently dangerous” if it is “of such a nature that in the ordinary course of events its performance would probably, and not merely possibly, cause injury if proper precautions were not taken.” Fla. Power & Light Co. v. Price, 170 So. 2d 293, 295 (Fla. 1964). The defendant is liable for the independent contractor’s negligent performance of “inherently dangerous activity” even though the defendant is entirely without fault. Generally, the issue of whether activity is “inherently dangerous” is a jury question “determined based on all of the circumstances surrounding the activity.” L.E. Myers Co. v. Young, 165 So.3d 1, 6 (Fla. 2d DCA 2015), reh’g den. (6-10-15). But some activities are “inherently dangerous” as a matter of law, such as 1. a crane in operation (Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, 385 So.2d 676, 679 (Fla. 3d DCA 1980)); 2. using steel beams to construct a building (Channell v. Musselman Steel Fabricators, Inc., 224 So.2d 320 (Fla. 1969)); 3. logging (Baxley v. Dixie Land & Timber Co., 521 So.2d 170 (Fla. 1st DCA 1988)); 4. clearing land by fire (Madison v. Midyette, 541 So.2d 1315 (Fla. 1st DCA 1989)); and 5. transporting extremely heavy equipment (American Home Assurance, 908 So.2d at 468). Getting Creative with the Second Restatement of Torts Consider the complicated direct and vicarious liability issues in Estate of Smyth v. Infrastructure Corp. of America, 113 So.3d 904 (Fla. 2d DCA 2013). At about 9:00 p.m., Edward Smyth was heading south on I-75 in Hillsborough County. Ahead of Mr. Smyth, on the roadway and in the passing lane, a large lawn mower was moving at about 25-30 miles per hour. To avoid hitting the lawn mower, other vehicles had to slow down and get out of the way, which caused Mr. Smyth’s car to slam into a fuel truck. The truck exploded and Mr. Smyth was killed. www.FloridaJusticeAssociation.org | January/February 2017 | 49