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AM I RESPONSIBLE FOR THAT?

Authored by attorney Neil Lowenstein

Landowners hire contractors to perform work for the landowner.  Contractors then typically hire multiple subcontractors to perform various portions of that work.  And, subcontractors then hire sub-subcontractors to perform various portions of their work.  And, so on depending upon the nature of the particular project.  Often the work being performed is dangerous, and this can result in personal injury or property damage.  Who is responsible when that happens?

There is a general rule in Virginia that one is not liable for the acts of an independent contractor.  But as with many things in the law there are exceptions to that rule. One of those exceptions is liability for inherently dangerous work done by someone one hires.  So what is inherently dangerous?  Unfortunately, there is no simple or single answer to that, and obviously much of what is done in for a typical construction project could qualify.

Some guideline conditions to something being inherently dangerous include the following: 1) work must be dangerous in and of itself and not just dangerous because it might be negligently performed; 2) the inherent danger must be naturally apprehended or reasonable recognizable by the parties when they contract; and 3) the inherently dangerous activity must be one in which injury to others will definitely occur unless special precautions are taken.

An easy example is blasting activities. But the fact that most things in construction are dangerous make creating a definitive list very difficult, and so ultimately this is decided on a case by case basis by the courts.  One recent construction activity example that was determined as inherently dangerous is the digging and laying of a waterline under a road, which a Roanoke judge ruled last year met each of these guideline conditions.

Duties owed to third parties affected by inherently dangerous activities are not delegable to independent contractors.  Therefore, where inherently dangerous activities are concerned, the delegating party remains liable for the negligence of independent contractors doing those activities.  But that liability is not without limits.  For example, this liability doctrine is intended to protect third parties and not the independent contractor or its employees.  Similarly other defenses to liability would apply as in any other claim, including for Virginia negligence suits such things as contributory negligence.

In later articles we will discuss potential protective measures to try and avoid or limit such liability exposure.  To learn more about this before then or to discuss the concepts in this article, please contact Neil Lowenstein at nlowenstein@vanblk.com or (757) 446-8600, or one of the other construction professionals in Vandeventer Black’s Construction and Public Contracts Department.

Authored by attorney Neil Lowenstein, these articles are meant to bring awareness to these topics and are not intended to be used as legal advice.  For more information, contact Neil Lowenstein or Bill Franczek at 757-446-8600. Visit www.vanblk.com, for our library of Construction Law Tips.  Suggestions for a topic? E-mail bfranczek@vanblk.com.

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