Construction Site Accident Claim Barred Under Independent Contractor Theory

In November of 2008, Plaintiff Brandon Helmick was painting the outside of a house under construction when he fell from his ladder and sustained serious injuries.  The fall was caused by the ladder being struck by a forklift operated by two workers Vogler, and Baker.  Burpee was the siding contractor which had hired Vogler and Baker to perform the installation of the concrete siding.  Helmick worked for the painting contractor.

Helmick sued Burpee and claimed that Vogler and Baker were employees of Burpee and that Burpee was vicariously liable for their negligence.  The trial court and the Court of Appeals, however, agreed that Vogler and Baker were independent contractors, not employees, and therefore Burpee was not responsible for their actions.

In determining whether someone is an employee or an independent contractor, Courts consider whether the employer retained the right to exercise control over the time, place, method and manner of the work performed.  Baker and Vogler did not report to Burpee on a daily basis and Burpee did not control the time, method or manner of their work.  Burpee did not provide them with materials or tools, could not direct them to report to a different jobsite, and would only fire them for poor workmanship or for failing to complete the job in a timely manner.  The men were not paid on an hourly rate but by the job, and had completed Form 1099s for Burpee to report their earnings for tax purposes rather than having income taxes deducted by Burpee.  The fact that Burpee did not have a written contract with Baker and Vogler specifically stating that they were independent contractors did not make a difference.

Helmick also argued that Burpee negligently entrusted the forklift to Baker and Vogel.  There was, however, no evidence to suggest that Baker and Vogel were reckless or incompetent or that Burpee had reason to know that they were.  The mere fact that Burpee did not investigate the driving record of Baker and Vogel and did not ask if either had ever operated a forklift before was not enough to establish a claim for negligent entrustment.

Although this case merely reiterates well established law, it provides a good source for arguing that summary judgment may and should be granted for a contractor who employs workers who it can establish were independent contractors.

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About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.