Security Personnel as Independent Contractors – Part Ii: What Liability Is Incurred to the Company From Accidents Involving Independent Contractors?

When someone hired by the company commits a wrong, the company’s potential exposure to liability varies greatly depending on whether the individual is classified as an “employee” or an “independent contractor.” In high-risk fields of service, like those involving security, “bouncers,” or other fields which may require a company to physically contact its customers, companies should pay careful attention to their corporate policies to understand the company’s potential exposure in the event of an accident involving these individuals. 

This article is Part II in a series discussing how personnel in these high-risk fields are typically classified, and the relevant liability associated therewith. In this Part, the article explains the potential for reduced liability facing a company if its security personnel are classified as “independent contractors” instead of “employees.” 

Overview

As outlined in Part I, a principal is generally held liable for the torts of his agent under the theory of “respondeat superior.” As mentioned above, the determination that a tortfeasor (alleged wrongdoer) is an agent of the principal can be simplified, in the right circumstances, to a classification of the tortfeasor as either “independent contractor” or “employee.” Del Pilar v. DHL Glob. Customer Sols. (USA), Inc., 993 So. 2d 142, 145 (Fla. 1st DCA 2008), cause dismissed, 1 So. 3d 171 (Fla. 2008). Generally, principals are liable via respondeat superior for torts committed by employees but not for torts committed by independent contractors. Id.

Exceptions to the General Rule

So, if an individual is classified as an “independent contractor,” does that automatically mean that the company avoids liability for any accidents involving the independent contractor? No. As with most things in law, there are exceptions to the general rule. Someone who hires an independent contractor can still be liable for the independent contractor’s torts where:

1. the activity is inherently dangerous, 
2. the owner/employer has contractually assumed responsibility, 
3. there is legally imposed responsibility, 
4. the owner/employer knew or had reason to know that the independent contractor would not perform in a satisfactory manner, or
5. where the independent contractor had apparent authority to act on behalf of the owner/employer.

Webb v. Priest, 413 So. 2d 43, 47 (Fla. Dist. Ct. App. 1982).

Inherently Dangerous Activity

Of the five exceptions outlined above, all are generally determined based on the particular facts of the case. However, exceptions numbered one (1) and three (3) warrant further discussion of the applicable legal standards in the context of contracted security personnel. With respect to whether an activity is “inherently dangerous” (exception #1), generally providing for the security of one’s property via security guards is not, in itself, an inherently dangerous activity—even when the security guard carries a firearm. Brien v. 18925 Collins Ave. Corp., 233 So. 2d 847, 848–49 (Fla 3d DCA 1970). In Brien, the court recognized that firearms are generally dangerous instruments. Id. But, the court went on to reason that the law only makes the owner of the firearm liable for injury resulting from it “if there was negligence in the entrustment of the firearm” and that therefore possession of the firearm, in and of itself, could not be an inherently dangerous activity. Id. The court in Brien required a finding that the owner of the property retaining the security services was guilty of negligence in some way to attach the independent contractor’s liability to the property owner:

We therefore hold that in the absence of an allegation that the owner had or ought to have had notice of the dangerous propensities of the guard employed by the security corporation, the owner will not be liable for consequences of the allegedly negligent manner in which the employee of the independent contractor performed his duties.

Id.

Legally Imposed Responsibility

Unfortunately the analysis regarding whether “there is a legally imposed responsibility” (exception #3) is not so straightforward. Some Florida courts impose a “nondelegable duty to keep the premises reasonably safe” to all companies, and evaluate whether the independent contractor’s actions breached that duty. However, as explained below, the law does not appear settled on this front. 

At least some courts have concluded that Florida law did not support a nondelegable duty imputing absolute liability for injuries resulting from torts of an independent contractor. Webb v. Priest, 413 So. 2d 43, 47 (Fla. Dist. Ct. App. 1982) (citing Emelwon, Inc. v. United States, 391 F.2d 9, n.2, p. 11 (5th Cir. 1968), cert. denied, 393 U.S. 841, 89 S.Ct. 119, 21 L.Ed.2d 111 (1968); Mai Kai, Inc. v. Colucci, 205 So.2d 291 (Fla.1967)). In Mai Kai, “[l]iability of the petitioner Mai Kai, Inc. [in the lower court] was predicated simply on its ‘nondelegable duty to keep its premises reasonably safe for invited use.’” Mai Kai, Inc. v. Colucci, 205 So. 2d 291, 292–93 (Fla. 1967). The Florida Supreme Court reasoned that, at least at that time (1967), there was “no precedent in our cases for application of that principle to impose liability without fault, or vicarious liability for the negligence of a third party contractor, in the circumstances of this case.” Id. The Court stated that previous holdings required a showing that the alleged peril was “known to the defendant, or which by the exercise of due care should have been known to him…” Id. The Court clarified that any liability arising from an owner’s duty to keep its premises safe with respect to the conduct of independent contractors “remains one of due care or reasonable care in preventing or correcting an unsafe condition, as opposed to absolute liability for a contractor’s negligence.” Id. 

However, other Florida courts have recently suggested that the ruling of Mai Kai might be qualified in the instance when the independent contractor is performing inherently dangerous work. Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, 385 So. 2d 676, 679–80 (Fla. 3d DCA 1980). In those instances, the Napoleon court held that “the duty of care in its performance is nondelegable by the employer” and any injury resulting from the independent contractor’s torts would necessarily impute liability to the entity which retained him. Id. Then, the court suggested that the retaining entity would be entitled to seek indemnity from the contractor-tortfeasor. Id. 

Furthermore, in direct conflict with the holding of Mai Kai, the court in U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So. 2d 268, 271 (Fla. 3d DCA 1995) held that a landowner can be liable for “the independent contractor’s breach of the landowner’s non-delegable duty to provide reasonably safe premises for its invitees.” Though that statement seems to imply unlimited liability for the actions of an independent contract, the court went on to seemingly qualify such unlimited liability in the very next sentence of its opinion: 

Accordingly, we have held that a landowner is not legally responsible for the negligent discharge of a firearm by a guard of the independent contractor who injures or kills a business invitee of the landowner. This is so because such a shooting in no way constitutes a breach of the landowner’s non-delegable duty to provide reasonably safe premises to its business invitees, including reasonable protection against third-party criminal attacks; it is solely a breach of the independent contractor’s tort duty to conduct itself in a reasonably safe manner so as not to injure third parties.

Id. (emphasis added). 

Reconciling these two statements from the Ramada court is challenging. The distinction between the two sentences appears to be that the negligent discharge of a firearm could only be a breach the contractor’s duty to act with reasonable care, and could not constitute a breach of the landowner’s duty to provide a reasonably safe premises. The Ramada opinion interpreted this way could suggest that there is a second level analysis to determining a landowner’s liability of the torts of the independent contractor, and that some fact must be alleged regarding the nature or magnitude of the contractor’s tort for it to qualify as a breach of the landowner’s duty.

But, the Ramada court ultimately held in apparent contradiction to the above analogy by ruling that the hiring company was liable for injuries caused by its independent contractor due to a breach of the company’s nondelegable duty to keep its premises reasonably safe:

(1) Ramada had a non-delegable duty to the plaintiff, as Ramada’s business invitee, to provide the plaintiff with reasonably safe premises, including reasonable protection against third party criminal attacks; and (2) Ramada could contract, as it did, with USS, an independent contractor, to provide the required security for its guests, but it was nonetheless vicariously responsible for any negligence of USS in providing such services based on the non-delegable duty theory. [internal citation] It therefore follows that Ramada and USS are jointly and severally liable for USS’s 35% negligence, and that Ramada is individually liable for its own 50% negligence, as reflected in the original judgment entered by the trial court based on the jury’s verdict.

U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So. 2d 268, 269–70 (Fla. 3d DCA 1995) (emphasis added). 

Ramada could stand for the proposition that a landowner is always liable for its independent contractor’s negligence causing harm to its business invitees.  However, there is some Florida law which may indicate that the independent contractor’s negligence coupled with Ramada’s negligence is a material fact that triggered the unbridled liability. Walters v. Beach Club Villas Condo., Inc., 301 So. 3d 343, 348 (Fla. 3d DCA 2020).

In Walters, the Beach Club hired an independent contractor to make repairs to its boardwalk. Id. The court identified a nondelegable duty that the Beach Club owed to its invitees to ensure the premises were reasonably safe, and found that the independent contractor failed to keep the premises reasonably safe. Id. In finding both the independent contractor and the landowner liable for the negligence, the court specifically relied on the fact that both the landowner and contractor received separate verdicts assigning negligence. Id. 

Conclusion

As shown above, a company’s potential legal exposure for the actions of an independent contractor are generally well-established but potentially uncertain. Companies must pay careful attention to how they utilize independent contractors, what agreements they have with independent contactors, and what actions the company takes in concert with the independent contractor to avoid unnecessarily exposing itself to potentially unbridled liability for the actions of its independent contractor. On this tricky topic, competent legal counsel can advise companies appropriately to ensure that the proper business relationship is created (as discussed in Part I) and that the company fully understands its potential legal exposure.