In a decision rendered last week, the Wisconsin Supreme Court affirmed a Wisconsin Court of Appeals decision holding that a person who hired an independent contractor to spray herbicide on his property could be held liable for damages sustained by a neighbor when the contractor’s negligent application of the herbicide killed trees on the neighbor’s property. See Brandenburg v. Briarwood Forestry Services, LLC, 2014 WI 37 (available here). As discussed in a blog post here last summer (that reported on the Court of Appeals’ decision), the case illustrates an exception to the general rule that a party who retains an independent contractor to provide services is not liable for the contractor’s negligent acts. The Supreme Court’s decision is an important reminder that property owners must exercise reasonable care when they retain contractors to provide services that could cause environmental damage to third parties.
To recap, the general rule in Wisconsin (and elsewhere) is that a party who hires an independent contractor to perform services is not liable to third parties for damages resulting from the contractor’s negligent acts. The injured party is allowed to recover damages only from the contractor. The law recognizes an exception to this rule when the contractor is retained to provide services that are considered inherently dangerous. The rationale for the exception is that a party seeking services that involve readily foreseeable risks of harm should not be able to evade liability for the known risks by hiring a contractor to perform the work.
In the case before the Supreme Court, a property owner (Luethi) hired a tree care service (Briarwood) to spray an herbicide that would kill unwanted brush growing on his property. Shortly after Briarwood sprayed the herbicide, trees and shrubs on the property of Luethi’s neighbor (the Brandenburgs) lost their leaves and ultimately died. The Brandenburgs sued Luethi, Briarwood and the latter’s insurer. The trial court dismissed the claim against Luethi, holding that the Brandenburgs could recover only from Briarwood. The Wisconsin Supreme Court agreed with the Wisconsin Court of Appeals that the Brandenburgs were entitled to sue Luethi as well as his contractor.
The Supreme Court unanimously reaffirmed prior decisions holding that an employer can be held liable for the negligent acts of an independent contractor retained to perform services that are inherently dangerous. The Court rejected Luethi’s arguments that Wisconsin law did not, or should not, recognize the inherently dangerous exception. The Court also reaffirmed the two criteria for deciding what constitutes an “inherently dangerous” activity: “(1) the activity must pose a naturally expected risk of harm; and (2) it must be possible to reduce the risk to a reasonable level by taking precautions.” Slip Op. at 21.
The Supreme Court’s decision went on, however, to clarify an issue that had not been squarely addressed in prior decisions, namely, what is the nature of the employer’s liability when a court determines that a contractor was retained to provide services that were inherently dangerous. Three of the justices (Chief Justice Abrahamson and Justices Bradley and Prosser) would have held the employer strictly liable for any damages resulting from the contractor’s negligent acts, i.e., the employer is vicariously liable for his or her contractor’s actions, irrespective of whether the employer committed any negligent act. A majority of the justices, however, held that the employer is liable only where the jury determines that he or she knew or reasonably should have known of the risks presented, but failed to exercise reasonable care to prevent the plaintiff’s damages. The case was remanded to the trial court to hear further evidence regarding this issue.
The Brandenburg decision demonstrates that employers should not assume they can avoid liability by retaining an independent contractor and they remain obligated to exercise due care when hiring a contractor to provide services that could cause harm to third parties. While the decision sets a relatively low standard for finding that the work of a contractor is inherently dangerous, it allows employers to avoid liability by demonstrating that they took reasonable steps reduce the risks. Thus, it behooves a party retaining a contractor to identify upfront the risks associated with the contractor’s work and to document (preferably in the parties’ contract or work order) that the contractor is responsible for mitigating all such risks, complying with all applicable laws (including, for example, applying herbicides in strict conformance with label specifications) and exercising reasonable care in performing the contracted services. By doing so, the employer may be able to convince a jury that he or she exercised reasonable care with retaining the contractor and that the plaintiff’s injuries resulted from the contractor’s failure to comply its express contractual obligations.
Please contact any member of the DeWitt Environmental Practice Group for assistance in managing your risks when retaining independent contractors.