An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or to perform any duty which the employer owes to third persons. To prevail against the principal for hiring an incompetent contractor, a plaintiff must show that the contractor was, in fact, incompetent or unskilled to perform the job for which he/she was hired, that the harm that resulted arose out of that incompetence, and that the principal knew or should have known of the incompetence.
The decedents were killed and the mother was seriously injured when their automobile was struck by an unregistered and uninsured tractor-trailer with defective brakes. The tractor-trailer was owned by a transport corporation. At the time of the accident, the tractor-trailer was transporting a load of glass residue as a subcontractor for Defendant. Defendant had contracted with a carting corporation to transport the load, with the carting corporation, in turn, assigning its responsibilities to the transport corporation. The plaintiffs brought suit against 22 defendants for wrongful death, personal injury, and other claims. The trial court granted summary judgment in favor of defendant. On appeal, plaintiffs argued that Defendant was vicariously liable for the negligence of the carting and transport corporations and that it hired an incompetent contractor for whose acts it was responsible.
Is a transportation company liable for negligent acts of a sub-contractor tractor-trailer operater?
The Court held that a company like Defendant, whose core purpose was the collection and transportation of materials on the highways, had a duty to use reasonable care in the hiring of an independent trucker, including a duty to make an inquiry into the trucker's ability to travel legally on the highways. As such, Defendant was not entitled to summary judgment on the incompetent contractor exception. The Court reinstated the complaint against Defendant, and remanded the cause to the trial court for further proceedings.