Defendants often claim that the negligent work they are being sued for was done by “an independent contractor”—thus attempting to alleviate their responsibility. This defense is often raised in cases where construction is being performed. However, it can also be raised when one party contracts with another for a specific type of installation or delivery work. In these cases, the independent contractor defense may not be applicable if you can establish that there was no prior disclosure to the owner that independent contractors would be used.
For a variety of reasons, the recovery professional may wish to craft an argument that will allow continued pursuit the primary target for the work done by the independent contractor. While not every jurisdiction has addressed this issue in the context of installations or deliveries, some have adopted Restatement (Second) of Torts §429. Under this section of the Restatement, you may be able to diffuse the defense that an independent contractor did the work if you are able to show the general contractor failed to disclose the use of independent contractors or subcontractors.
Massachusetts has adopted Section 429 of the Restatement (Second) of Torts. In Harkins v. Colonial Floors, 8 Mass. L. Rptr. 127, 1998 WL 22075, * 8, No. CIV A 96 910 (Mass. Super. Ct. 1998), the court set forth a roadmap for how to defeat the defense of the independent contractor doctrine in a repair, installation or delivery setting.
When faced with the independent contractor doctrine in a setting that involves installation or delivery, recovery professionals should examine Section 429 of the Restatement to see whether it may apply in your state.