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Think Twice Before Treating your Independent Contractor like an Employee

November 05, 2020 BY Camile Hart

Can you hire your own employee as an independent contractor and avoid liability for their on the job injury?  The answer is sometimes yes, but employers should be careful.  Recently, the Georgia Court of Appeals delivered an opinion in line with the general rule that that an employer is under no duty to take affirmative steps to guard or protect the contractor’s employees against the consequences of the contractor’s negligence or to provide for their safety.  In Wilson v. Guy, a construction worker, Hunter Guy, brought a negligence action against the owner of the construction company, Robert Wilson, for injuries he received while performing property maintenance work for the owner at the owner’s residence. No. A20A0969, 2020 WL 5201003 (Ga. Ct. App. Sept. 1, 2020). Sometimes Wilson’s employees would do work separate from the business of the company on the weekend to earn extra money by performing tasks at Wilson’s residence.  The work included mowing the lawn, landscaping, yard work, and other property maintenance tasks.   

Williamson asked Wilson if he could work at his residence on May 5, 2018 and be paid in advance.  Wilson agreed.  The day before the job, Williamson asked Guy if he wanted to help with the work at Wilson’s residence to make some extra cash.  Wilson knew that Guy would be working with Williamson.  On the day on the incident, Williamson and Guy arrived at Wilson’s home to begin work.  Wilson left the residence while Williamson and Guy were working, so he was not home to supervise, monitor, or observe them.  Before departing, Wilson told Guy to listen to Williamson and do whatever tasks that he was asked to do.   

Williamson informed Guy that Wilson had instructed them to “trim the fence and then burn the brush.”  While Williamson trimmed the fence, Guy gathered all the brush into a pile to be burned.  The pile of brush contained over 150 logs and was five feet tall.  Guy stood about a foot away from where he was spreading gasoline.  Before the fire could be lit, the brush blew up like an explosion and forced Guy back off the logs and burned him.  Due to the severity of the burns, Guy remained in the hospital for about a week and a half.  

Guy filed a civil complaint for damages against Wilson, claiming Wilson was negligent for failing to supervise the burning of the brush on his property; having gasoline on his property to be used in burning the brush, not training Guy on the proper use of gasoline to burn brush, and not training Williamson on the proper use of gasoline to burn brush or how to supervise others in doing so.  Guy also alleged that Wilson was responsible for the negligent acts of Williamson under the doctrine of respondeat superior.  Wilson filed a motion for summary judgment.  Guy filed a response and the trial court denied Wilson’s motion. 

On appeal, Wilson argued that he was not vicariously liable for any of Williamson’s negligent acts, because in that instance, Williamson was an independent contractor, not an employee.  The Georgia Court of Appeals agreed that both Williamson and Guy were working as independent contractors at the time of the brush fire explosion and therefore, Wilson was not liable for Guy’s injuries.  The Court found no evidence that Wilson assumed the right to tell Williamson or Guy exactly how to go about their tasks in every detail, which tools to use, or what procedures to follow in carrying out their work.  There was no evidence that Wilson knew the method that Guy and Williamson planned to set the brush on fire.  Wilson merely instructed them regarding the general tasks to be done.  Wilson was not even home when the two men worked.  Guy admitted that he was under the direct supervision Williamson, not Wilson.  The Court found it significant that Guy never heard Wilson tell Williamson that they should use gasoline to burn the brush.  There was no evidence that Wilson controlled the specific hours during which Williamson and Guy worked or the order in which the requested tasks would be performed.   

Guy provided no legal authority that an employer has a duty to train and supervise an independent contractor and can be held negligent for failing to do so.  The very nature of the employer-independent contractor relationship is that the employer lacks the right to control or direct the way in which the independent contractor performs his or her work.  An individual contractor is expected to “determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of his work.”   

This is an area of law where employers must be careful to avoid falling into exceptions.   An employer/premises owner will lose summary judgement if there is evidence that the employer assumed the right to control the time, manner, and method of executing the work as compared to merely requiring certain definite results in conformity of the contract.  An employer could also lose summary judgment if the employer makes the situation more dangerous.  In Wilson v. Guy, the employer left the premises while the independent contractors worked, clearly not trying to control the manner and method of executing the work.  He did not tell them how to burn the brush and therefore did not instruct them to do anything more dangerous such a use gasoline to burn the brush.  Guy admitted that he was under the supervision of Williamson, not Wilson.  The relationship between Wilson and Guy of employer and employee during the week did not create a question of fact regarding their relationship as employer and independent contractor at the time of the incident.  It is important to remember that a court will look for exceptions to the general rule that that an employer is under no duty to take affirmative steps to guard or protect the contractor’s employees against the consequences of the contractor’s negligence or to provide for their safety.  If the employer avoids the pitfalls of treating the independent contractor like an employee, they may avoid liability. 

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley