Independent contractor or employee? It’s a hot question these days, for sure. A recent decision from the Delaware Superior Court answers the question in an unusual way–yes and no. In Colon v. Gannet Co., Inc.,
No. N10C-04-007-MMJ (Del. Super. July 26, 2012), the court held that the plaintiff was an independent contractor but that the employer still could be found liable for harm caused to him during the course of his work.
The plaintiff, Jesus Colon, was selling newspapers as a street hawker when he was struck and injured by a motor vehicle. A street hawker, according to the court, is an “independent contractor who purchases and resells copies of the newspaper at predetermined locations.”
The publisher had a contract with Keith Walker, who, in accordance with the contract, purchased papers daily and resold them in a designated territory. Pursuant to the agreement, Walker could contract with other parties to assist in selling the papers. Colon was one such party. The agreement also contained an indemnification provision whereby Walker would indemnify the publisher for any claims against it brought by any of Walker’s agents.
Colon filed suit against the newspaper’s publisher, Gannett Company, Inc., alleging negligence and reckless disregard for his safety. The publisher answered the complaint and filed its own, third-party complaint against Walker and the driver of the vehicle. The publisher later filed a motion for summary judgment on the grounds that Colon’s status as an independent contractor precluded a finding of liability.
The court acknowledged that, generally, an employer will not be liable for the torts of an independent contractor that are committed in the performance of contracted work. However, the court went on to explain, the general rule is subject to three exceptions. First, the employer can be liable for its negligence in selecting, instructing, or supervising the contractor. Second, the employer can be liable when it has delegated non-delegable duties that arise out of some relation to the public or the particular contractor. Third, the employer can be held liable where the work that the contractor was hired to perform was “specially, peculiarly, or ‘inherently’ dangerous.”
The court found that the first two exceptions did not apply before turning to the third. The third exception, the court held, applies not only to inherently dangerous work but also to work that involves a risk of harm is present where the work is performed in the ordinary manner.
The court went on to conclude that, whether a street hawker, who sells newspaper on the street corner and who, in the course of doing so, would enter the roadway many more times a day than the ordinary pedestrian. As a result, the court found that it would be up to the factfinder to determine whether this risk constituted an inherently dangerous risk that would prevent Gannett from avoiding liability with the independent-contractor defense.