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Independent Contractors: Cases Summarized By Injury Attorney

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Independent Contractors and the related topic of personal injury. For more information about independent contractors see the pages on Wikipedia.

Independent Contractors-Cases

2004 Southern Floors & Acoustics, Inc. v. Max-Yeboah, 267 Va. 682, 594 S.E.2d 908.

Plaintiff injured in grocery store in aisle where flooring contractor was preparing work. General rule regarding liability of owner for negligence of independent contractor is that owner who employs independent contractors is not liable for injuries to third persons caused by the contractor’s negligence. Respondeat superior may apply if contractor, using a dangerous instrumentality, engaging in work that is inherently dangerous, engaging in work that is wrongful per se, or is a nuisance or is such that it would cause injury in the natural course of events unless special precaution was taken. None of those exceptions exist in this case. In this case, the grocery store had no duty to supervise the independent contractor.

2001 Atkinson v. Sachno, 261 Va. 278, 541 S.E.2d 902.

Social Security disability claimant brought medical malpractice action against physician who performed examination on referral from Disability Determination Services. Supreme court held that independent contractors such as this doctor are excluded from protection of sovereign immunity and that this physician was in fact an independent contractor. In this case, power of control is determinative when considering whether individual is employee or independent contractor. Physician conducted examinations in his own office, using his own equipment, number of examinations he performed was not substantial when compared to the volume of his practice, physician was paid fixed fee for examination, and state agency did not have right to control means and method by which he performed examinations and tests.

1997 McDonald v. Hampton Training School, 254 Va. 79, 486 S.E.2d 299.

The factors to be considered in evaluating whether person is independent contractor are: (1) selection and engagement, (2) payment of compensation, (3) power of dismissal, and (4) power to control work. The fourth factor is most important and this relates simply to whether employer has power to exercise such control not whether control is actually exercised. In this medical malpractice case, hospital maintained that because doctor exercised independent professional judgment that therefore he was independent contractor. Supreme Court rejected that argument as determinative and said that is only one factor to be considered. In this case doctor was director of pathology at hospital, he was charged with interpreting all pathology specimens presented, laboratory was owned by hospital, laboratory personnel are employees of the hospital and doctor was paid a set monthly fee for services and reimbursed for all expenses. Jury issue presented as to whether he was employee or independent contractor.

1994 C. & P. Tel. Co. v. Properties One, 247 Va. 136, 439 S.E.2d 369.

Property owner hired contractor to do excavation work and in course of doing so contractor cut utility line. Only evidence of negligence on part of contractor is failure to call Miss Utility. General rule is that owner who employs independent contractors is not liable for injuries to third persons caused by contractor’s negligence. Exceptions exist in cases of dangerous instrumentality and inherently dangerous work, work that is wrongful per se, work that is nuisance or work that is such that it would in the natural course of events produce injury unless special precautions are taken. C. & P. failed to bring its evidence within one of these exceptions in this case and as such negligence of contractor is not attributable to owner.

1990 MacCoy v. Colony House Bldrs., 239 Va. 64, 387 S.E.2d 760.

Employer of independent contractors is normally not liable for negligence of independent contractors. One exception is wrongful per se situation. This exception arises only when work to be performed is unlawful. In this case, plaintiff alleged that electrical work was in violation of building code. This does not meet wrongful per se exception.

1989 Hadeed v. Medic 24 Ltd., 237 Va. 277, 377 S.E.2d 589.

Factors to consider: (1) selection and engagement of servant; (2) payment of compensation; (3) power of dismissal; and (4) power of control. Fourth factor is determinative. In this medical malpractice case jury issue existed since doctors were called upon to exercise independent judgment and discretion in treatment. Therefore up to jury to decide whether employee or independent contractor.

1988 Philip Morris, Inc. v. Emerson, 235 Va. 380, 368 S.E.2d 268.

Philip Morris hired contractor to dispose of deadly chemicals. Negligence of Philip Morris due to it having hired incompetent contractors. Philip Morris never investigated contractor’s background, contractor had no experience in dealing with these chemicals, and Philip Morris obviously knew of contractor’s negligence yet did not terminate relationship. Therefore, Philip Morris guilty of negligence as matter of law.

1987 Kesler v. Allen, 233 Va. 130, 353 S.E.2d 777.

As general rule, owner who employs independent contractors is not liable for injuries to third persons caused by contractor’s negligence. Exceptions exist and doctrine of respondeat superior may become applicable if independent contractor’s torts arise directly out of his use of dangerous instrumentality, arise out of work that is inherently dangerous, are wrongful per se, are nuisance or are such that it would in natural course of events produce injury unless special precautions are taken. Evidence in this case does not bring installation of storm door within any of these exceptions and as such general rule applies. The Court holds that landlord, in absence of one of exceptions, has no vicarious liability to tenant for negligence of independent contractor in making repairs or improvements.

1982 Richmond Newspapers, Inc. v. Gill, 224 Va. 92, 294 S.E.2d 840.

Newspaper carrier held independent contractors not covered by workmen’s compensation act. Most important criterion is control which includes power to control, not only result but also means. Although contract may designate person as independent contractor, that is not conclusive. Contracts containing express limitations to terminate are more characteristic of independent contractors than employees.

1982 Glenmar Cinestate, Inc. v. Farrell, 223 Va. 728, 292 S.E.2d 366.

Off-duty police officer directing traffic from drive-in theater onto state highway acted as independent contractors and not as employee of theater management. Primary criterion is control. Where compensation is based on time or piece then workman is usually servant and where it is based on lump sum he is usually contractor.

1972 Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162.

Shell leased service station to operator. Operator hired employees who were injured and brought action against Shell as statutory employer. Operator is independent contractor and Shell is not statutory employer since it is not in business of operating retail service stations.

1971 Broaddus v. Standard Drug Co., 211 Va. 645, 179 S.E.2d 497.

Drug company contracted with detective agency to provide guards to handle traffic on parking lot. Guards found to be independent contractors as to drug company; generally, employer is not liable for negligence of independent contractors except where work is unlawful, nuisance, inherently dangerous or will in natural course of events produce injury.

1970 Thaxton v. Commonwealth, 211 Va. 38, 175 S.E.2d 264.

Contract defined corporation and “directors” and “supervisors” in relation of independent contractors and not employer-employee. Agreement not controlling; right to control and power to discharge are inconsistent with status of independent contractor and are usual marks of relationship of master and servant.

1967 C. & M. Promotions v. Ryland, 208 Va. 365, 158 S.E.2d 132.

County police officer paid by defendant to police wrestling arena was not agent of promoter.

1967 Norfolk & W. Ry. v. Johnson, 207 Va. 980, 154 S.E.2d 134.

Railway not liable in its status of employer of independent contractors. General rule is that employer is not liable for negligence of independent contractors. There are exceptions to general rule with respect to work that is unlawful, nuisance inherently dangerous or will in natural course of events produce injury unless special precautions are taken. Several citations to pertinent cases.

1967 Richmond, F. & P.R.R. v. Hughes-Keegan, Inc., 207 Va. 765, 152 S.E.2d 28.

Defendant entered into contract with railroad to perform all work on particular job. Defendant hired independent contractors to do some of work. This independent contractor was agent of defendant for purposes of contract.

1966 Wells v. Whitaker, 207 Va. 616, 151 S.E.2d 422.

Whether one is agent or independent contractor is determined by criterion of control or right of control of methods and details of work. Discussion of liability of employer for acts of independent contractor.

1966 Finley, Inc. v. Waddell, 207 Va. 602, 151 S.E.2d 347.

One cannot relieve himself of liability by engaging independent contractors to perform work which in course of performance necessarily creates nuisance.

1964 City of Richmond v. Branch, 205 Va. 424, 137 S.E.2d 882.

After owner accepts work of subcontractor, latter has no liability for subsequent injury to third party even if it results from negligence. There was nothing inherently dangerous about work.

1961 Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452, 117 S.E.2d 685.

Bus company was held to be independent contractor because bus company had complete control over maintenance, supervision of buses and employees. If party to contract may specify results only and contractor may adopt such means as he chooses, then he is independent contractor. Two primary criteria for independent contractor: control and whether contract provides for fixed price.

1959 Anderson v. Thorington Constr. Co., 201 Va. 266, 110 S.E.2d 396.

Consulting engineering firm and subcontractor both referred to as independent contractors in this case.

1959 Certified TV & Appliance Co. v. Harrington, 201 Va. 109, 109 S.E.2d 126.

Shelf improperly constructed by independent contractors collapsed. Defendant could not shield itself by negligence of independent contractor.

1959 Ritter Corp. v. Rose, 200 Va. 736, 107 S.E.2d 479.

It is well settled in Virginia that one who engages independent contractor to do work of inherently hazardous character or to use dangerous instrument, from either of which, in natural course of things, it is likely that injurious consequences to others may arise, cannot relieve himself of responsibility if independent contractor fails to exercise due care. In this case contractor was subcontractor who was moving heavy equipment across railroad tracks.

1958 Lassiter v. Jones, 200 Va. 294, 105 S.E.2d 849.

Plaintiff was found to be employee and not independent contractor because he was hired by defendant, was paid wages by defendant, was controlled by defendant, and was subject to discharge by defendant.

1953 Putnam v. Bero Eng’g & Constr. Corp., 195 Va. 161, 77 S.E.2d 411.

Contractor directed by state highway department to cease work in certain area of highway and work on another stretch. Plaintiff injured on first stretch. Contractor owed no contractual or common-law duty to maintenance of area.

1952 Phillips v. Brinkley, 194 Va. 62, 72 S.E.2d 339.

Individual was found to be employee and not independent contractor where he worked same hours as employees, was under supervision of superintendent, was paid every two weeks based on number of hours worked, was paid $2.00 per hour and had on several occasions asked supervisor for days off. Two most important criteria are: who controls work and is there contract for doing of specific work at fixed price. Another important criteria is whether either of parties possess right to terminate services at will without incurring liability to other. If this can be done, then relation is one of master-servant.

1952 Pioneer Constr. Co. v. Hambrick, 193 Va. 685, 70 S.E.2d 302.

Plaintiff fell at night into open trench extending across city street. Discussions as to duties of city and independent contractors. City could not delegate duty as to care of streets to independent contractor.

1949 Brown v. Fox, 189 Va. 509, 53 S.E.2d 109.

Plaintiff was placed completely under control of defendant and there was no difference in control exercised over him and employee of defendant engaged on same work. Plaintiff held to be employee of defendant for purposes of Workers’ Compensation Act and not independent contractor. Other factors to be considered are manner of payment and how work is done.

1945 Nolde Bros. v. Chalkley, 184 Va. 553, 35 S.E.2d 827.

Primary test is who has power to control and direct servants in performance of their work. Delivery man in this case was held not to be independent contractor.

1944 Knight v. Peoples Nat’l Bank, 182 Va. 380, 29 S.E.2d 364.

Relationship of employer and employee does not exist where former has no right to select latter, no right of control, no right to discharge, no power to describe duties and no right to determine method of performance. Relation of principal and independent contractor was created when person employed another to obtain specific results but had no right of control over manner of performance.

1944 Virginia State Fair Ass’n v. Burton, 182 Va. 365, 28 S.E.2d 716.

In regards to this auto race, sponsor’s duty of ordinary care continued even though independent contractor was hired to produce races.

1943 Ross v. Schneider, 181 Va. 931, 27 S.E.2d 154.

Principal factor to consider in determining whether individual is independent contractor or employee is power of employer to control work done. Another factor is whether work is being done at fixed price. Where employer has given extensive instruction to carpenter as to how to do work and carpenter follows these instructions and is being paid on hourly basis, then carpenter is employee.

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Independent Contractors: Cases Summarized By Injury Attorney

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