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Employers Shall Take Special Precautions In the Retention of Armed Security Guard Independent Contractors to Avoid Tort Liability

By: Brian K. Skidmore(1)

A Publication of Skidmore & Associates, A Legal Professional Association

A recent Ohio Supreme Court decision expanded the tort liability of an employer for the negligent acts of an independent contractor. In Pusey v. Bator, 94 Ohio St. 3d 275, 281 (2002) the Court concluded that a manufacturing plant could be held liable for the negligence of an armed security guard employed by an independent contractor and that providing security is inherently dangerous as a matter of law.2

Companies often hire independent contractors, or attempt to classify existing employees as independent contractors, to avoid tort liability and save taxes. As a general rule, employers are not vicariously liable for the negligent acts of independent contractors.3 However, this rule is not without exceptions, and the Pusey decision broadens those exceptions.

Exceptions to the general rule of liability stem from the "non-delegable duty doctrine", which means certain duties of reasonable care that employers owe to the general public cannot be delegated to others, and therefore the liability also cannot be transferred.4 There are two general classifications of non-delegable duties: (1) affirmative duties that are imposed by contract, statute, franchise, charter, or common law, and (2) duties imposed that arise out of the work itself because its performance creates dangers to others.5

The second classification is often referred to as the "inherently dangerous" work exception, and is so classified when it creates a peculiar risk of harm to others unless special precautions are taken.6 To fall within the inherently dangerous work exception, the work must involve a risk, recognizable in advance, of physical harm to others, which is inherent in the work itself.7 The risks associated with the work must create a special danger to those in the vicinity due to the particular circumstances. The exception does not apply, however, where the employer would reasonably have only a general anticipation of the possibility that the independent contractor may be negligent in some way and harm others.8 Risks associated with custom or routine activities, such as driving a car, do not qualify for the exception.

When an employer hires an independent contractor to perform inherently dangerous work, it has a duty to see that the work is done with reasonable care, and cannot insulate itself from liability for injuries resulting from the negligence of the independent contractor.9 The employer's duty arises from the work itself when the injury might have been anticipated as a direct or probable consequence of the performance of the work contracted for, or if reasonable care is not taken in its performance.10

In the Pusey case, the Ohio Supreme Court found that the work of an armed security guard is inherently dangerous as a matter of law, concluding that "it is foreseeable that someone might be injured by the inappropriate use of the weapon if proper precautions are not taken."11 Therefore, an employer could be vicariously liable for the negligent shooting death by an armed guard employed by an independent contractor.

As a result, employers could avoid the liability imposed by the Pusey case by employing unarmed guards (reduced deterrent to theft but reduced peculiar risk of harm to others) or by employing armed guards and taking special precautions to reduce the inherent danger of a negligent armed confrontation. The special precautions should be drafted into the provisions of the contract between the business owner and security company, conspicuously posted at the guard office, and monitored to assure compliance.

Employers should be cautious in hiring independent contractors in an attempt to lessen or avoid liability. The Court found that the work could be delegated, but not the duty of care associated with the work. The Pusey case concerned armed security guards, but the reasoning may be analogized to other inherently dangerous work situations. Special care should be taken in the hiring and control of an independent contractor based on the employer's particular circumstances.

At Skidmore & Associates, we understand employment law and how employers as well as employees may be affected by various circumstances. Feel free to contact the author to learn more about the Pusey decision and any other questions you may have about employment law.

[This article has been prepared for the purpose of disseminating information only and should not be interpreted or construed in any way as legal advice.]

  1. I would like to thank Janelle Dease for her contribution to these materials. Ms. Dease is a third year law student at the University of Akron College of Law.

  2. The fact pattern in the Pusey case was never submitted to a jury because the trial court granted a directed verdict to the manufacturing plant owner which was affirmed by the Court of Appeals. Although the Ohio Supreme Court reversed the trial court and Court of Appeals, the issue as to negligence was remanded for determination by a jury. Pusey, 94 Ohio St. 3d at 281. Upon remand, if the jury finds the security guard negligent, the holding in the Pusey case would impute liability to the business owner. The matter becomes more complicated when the doctrines of comparative negligence and contribution are introduced to a jury. If the jury concludes that there was no negligence, there is no liability to impute.

  3. Clark v. Southview Hospital & Family Health Center, 68 Ohio St. 3d 435, 438 (1994); Strayer v. Lindeman, 68 Ohio St. 2d 32,34 (1981); Restatement of the Law 2d, Torts, 370 Section 409 (1965).

  4. Pusey 94 Ohio St. 3d at 279.

  5. Id. (Citing Albain v. Flower Hospital, 50 Ohio St. 3d 251, 260-261 (1990)).

  6. Id. Covington & Cincinnati Bridge Co.v. Steinbrock & Patrick, 61 Ohio St. 215 (1989).

  7. Id. at 280. (Citing 2 Restatement of the Law 2d, Torts, at 416, Section 427, Comment b.)

  8. Id.

  9. Id.

  10. Id. at 281.

  11. Id.