The court in that case took the extreme position that if something can be done without probable injury, it is not “inherently dangerous.” They rejected the argument that an activity such as spray painting can become inherently dangerous if preformed under certain circumstances, including the location of the work, time of day, wind conditions, etc. 1999); Kinsman v. Unocal Corp., 2 Cal. Id. A painting contractor is an “independent contractor” whenever he does work of another under conditions which are not sufficient to make him a servant or employee of the other person. 1996) (woman injured when she leaned against building that had been cleaned with acid for about five minutes while watching the Macy’s Thanksgiving Parade). Since that decision, the law has progressed by the recognition of an increasingly large number of “exceptions” to the general rule that an owner will not be responsible for the actions of an independent contractor. Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42 (Tenn. Ct. App. 1998); Ahl v. Stone Southwest, Inc., 666 So.2d 922 (Fla. App. The court determined that such influences do not transform “the basic nature” of the activity to one that is inherently dangerous. For many years, there was no exception and the owner simply could not be held liable for the actions of an independent contractor who was not his employee. 1977), aff’d 398 A.2d 1378 (Pa. 1979). The risk of damage to surrounding property caused by overspray is unreasonable because the probability in gravity of the damage far outweighs the burden on persons engaged in spray painting to take precautions to prevent the damage. In general, the exceptions may be said to fall under three very broad categories: (1) negligence of the employer in selecting, instructing, or supervising the contractor; (2) non-delegable duties of the employer arising out of some relation toward the public or the particular plaintiff/insured; and (3) work which is specially peculiarly, or “inherently” dangerous. Subrogation for paint overspray claims under this exception will be limited to specific situations in which the overspray damages caused are in a public place, such as in a parking lot. I guess it's already over 20 years old, so it's completely hardened. Even when a contract states that the contractor is responsible for overspray claims, the facility owner frequently bears the burden of irate employees, visitors, delivery service drivers, and others complaining of overspray damage to their respective vehicles. The premise behind this exception is that the employer was negligent in directing the contractor to do work which is dangerous in itself or in the manner in which it is done. As is true with most subrogation investigation, it is vitally important to obtain all of the relevant information, documents, and statements necessary to ascertain the facts on which the liability of the owner will hinge. An exculpatory clause in the contract may or may not relieve the owner from liability, depending on the state involved, but it certainly will play a role when determining the duty of care owed by the owner. Three conditions of employee vs. independent contractors, New Regulations Regarding Covid 19 Employer requirements have gone into effect for California, Make sure your business property is covered properly, Is your Independent Contractor REALLY not an employee? A Wisconsin Supreme Court determined that hauling corn silage did not create an unreasonable risk of harm, and therefore, an owner hiring an independent contractor to haul the corn silage was not liable for the actions of its independent contractor. excluding paint overspray as a covered loss. Hazardous components of paint spray include metals such as lead and chromium, polyisocyanates, and liquid organic solvents. Unfortunately, as is the case of many areas of subrogation, a carrier’s recovery rights and the respective liability of third parties involved in a subrogation action are almost always determined by the individual law of the state involved. Presumably, it would include parking lots in such public places. Restatement (Second) of Torts § 417 (1965). Nonetheless, painting contractors play the odds every day, as even conscientious and prudent painting contractors will face occasional overspray situations. The Tennessee Supreme Court has noted that a risk becomes unreasonable if the reasonably foreseeable probability and gravity of the harm far outweighs the burden upon the defendant to engage in alternative conduct that would have prevented the harm. Beck v. Woodward Affiliates, 640 N.Y.S.2d 205 (N.Y.A.D. But, what about painting? Is painting so inherently dangerous that the owner should be responsible for the actions of the painting contractor where precautions are not required to be taken? Paint Pockets excels in arresting both liquid and powder coating overspray generated in industrial, automotive, and aerospace applications. As is true with most subrogation investigation, it is vitally important to obtain all of the relevant information, documents, and statements necessary to ascertain the facts on which the liability of the owner will hinge. Posted April 24, 2013 by sentryair. The difficulty of subrogating under this exception is proof that the employer of the independent contractor actually gave instructions or orders, which were followed by the contractor, and which, in turn, resulted in the overspray. When painting the siding around your windows, it’s very common to get some overspray or paint drips onto the exterior of the windows. One of the most frequently considered, but least applicable (depending on the state) exception to the general rule of non-liability of the owner for the actions of an independent contractor, is one involving negligent employment of an independent contractor. The latest insurance newssent straight to your inbox and Human Services, Health... N.W.2D 437 ( Minn. 1980 ), easy way to clean it up his employee which were in! Carriers must be both “ subrogation smart ” and aggressive in both and. Use our site, you accept our revised privacy policy to be and... Jones v. American Service Bureau, Inc., 960 P.2d 556 ( 1998... 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