Pusey v. Bator

2002-Ohio-795, 94 Ohio St. 3d 275, 762 N.E.2d 968



An employer is generally not liable for the negligent acts of an independent contractor. There are, however, exceptions to this general rule, several of which stem from the nondelegable duty doctrine. Nondelegable duties arise in various situations that generally fall into two categories: (1) affirmative duties that are imposed on the employer by statute, contract, franchise, charter, or common law; and (2) duties imposed on the employer that arise out of the work itself because its performance creates dangers to others, i.e., inherently dangerous work. If the work to be performed fits into one of these two categories, the employer may delegate the work to an independent contractor, but he cannot delegate the duty. In other words, the employer is not insulated from liability if the independent contractor's negligence results in a breach of the duty. 


A steel drum manufacturer, hired a security company to guard its property after it experienced several incidents wherein trespassers stole property from its parking lot. During one of his shifts, a security guard found two unidentified men in the parking lot. Due to uneasiness of the security guard, one of the unidentified men was shot and killed. When the police arrived, the uninjured man claimed that they entered the property looking for a jack to help a female motorist with a flat tire. A police officer immediately went to the area where he indicated that the unidentified men had seen the stranded motorist but the officer did not find a car with a flat tire there. The victim's mother filed a wrongful death and survivorship action against the security guard, the security agency and the manufacturer. The manufacturer was not aware that the security guard had a weapon with him. The trial court directed a verdict in favor of the manufacturer. On appeal, the verdict was affirmed, the court ruling that even when viewed in the light most favorable to the mother, the evidence clearly established the security agency's status as an independent contractor. The case was further elevated to the Supreme Court of Ohio on appeal.


Should the steel drum manufacturer be liable for the wrongful death?




The Court held that when armed guards were hired to deter vandals and thieves, it was foreseeable that someone might be injured by the inappropriate use of the weapon if proper precautions are not taken. Thus, such an injury was one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care was not taken in its performance. The judgment was reversed and remanded.


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