Liability for Independent Contractor's Torts. Greif Brothers Corp, a steel drum manufacturer, owned and operated a manufacturing plant in Youngstown, Ohio. In 1987, Lowell Wilson, the plant superintendent, hired Youngstown Security Patrol, Inc (YSP), a

Question

security company, to guard Greif property and "deter thieves and vandals." Some YSP security guards, as Wilson knew, carried firearms. Eric Bator, a YSP security guard, was not certified as an armed guard but nevertheless took his gun, in a briefcase, to work. While working at the Greif plant on August 12, 1991, Bator fired his gun at Derrell Pusey, in the belief that Pusey was an intruder. The bullet struck and killed Pusey. Pusey's mother filed a suit in an Ohio state court against Greif and others, alleging in part that her son's death was the result of YSP's negligence, for which Greif was responsible. Greif filed a motion for a directed verdict. What is the plaintiff's best argument that Greif is responsible for YSP's actions? What is Greif's best defense? Explain.

Answer 1

Liability for independent contractor's torts
The court granted Greif's motion, holding that even if Pusey's death was the result of YSP's negligence, Greif was not liable because YSP was an independent contractor and, as a general rule, an employer is not liable for the negligent acts of its independent contractor. Pusey's mother appealed to a state intermediate appellate court, which affirmed the trial court's ruling, and Pusey's mother appealed to the Ohio Supreme Court, which reversed the lower court's decision and remanded the case for a determination of YSP's negligence. The plaintiff claimed that hiring armed guards to protect property creates an exception to the general rule that an employer is not liable for the harm caused by the negligence of an independent contractor because the work is "inherently dangerous." Greif argued that hiring armed guards to protect property does not create a peculiar risk of harm to others and, therefore, does not fit within the inherently dangerous work exception. The state supreme court found that "work such as YSP was hired to perform does create a peculiar risk of harm to others. When armed guards are hired to deter vandals and thieves it is foreseeable that someone might be injured by the inappropriate use of the weapon if proper precautions are not taken. Thus, such an injury is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is not taken in its performance. Also, the risk created is not a normal, routine matter of customary human activity, such as driving an automobile, but is instead a special danger arising out of the particular situation created and calling for special precautions." Thus, Greif could be "vicariously liable even though the guard responsible is an employee of the independent contractor."