The independent contractor rule in Wisconsin generally provides that “one who contracts for the services of an independent contractor is not liable to others for the acts of the independent contractor.” Lofy v. Joint School District 2, 42 Wis.2d 253, 166 N.W.2d 809 (Wis. 1969). However, an exception to this rule has been found if the activity being performed by the independent contractor is “inherently dangerous”. Wagner v. Continental Cas. Co., 143 Wis.2d 379, 392-93, 421 N.W.2d 835 (Wis. 1988). The application of this exception was recently clarified by the Wisconsin Supreme Court in the case of Brandenburg v. Briarwood Forestry Services, LLC, 2014 WI 37.
In Brandenburg, the question presented was whether a property owner who hires an independent contractor to spray herbicide on his property may be liable for damages caused to trees on his neighbors’ property. In determining whether this case falls into the “inherently dangerous” exception to the general rule of no liability, the Supreme Court held that the Court must first look at whether the activity “poses a naturally expected risk of harm.” Hoida, Inc. v. M & I Midstate Bank, 291 Wis.2d 283, 717 N.W.2d 17 (Wis. 2006). If so, the Court must then determine whether it is possible to “reduce the risk of the activity to a reasonable level by taking precautions.” Id. If the answer to both questions is “yes,” the activity may be considered “inherently dangerous” and the property owner may be liable for the acts of the independent contractor. Id.
The Supreme Court in Brandenburg also went on to clarify an issue that had not yet been addressed in prior cases. Specifically, the Court looked at the nature of the property owner’s liability when a court determines that a contractor was retained to provide services that were “inherently dangerous”. Three of the justices would have held the property owner strictly liable for any damages resulting from the contractor’s negligent acts. A majority of the justices would have held the property owner liable only where the jury determines that he or she knew or reasonably should have known of the risks presented but still failed to exercise reasonable care to prevent the damages. The Court ultimately remanded the case back to the trial court to determine whether the property owner had requisite notice.
The importance of the Brandenburg decision is that it demonstrates that a property owner may be on the hook for the activities of an independent contractor if the services being done are “inherently dangerous.” It is, therefore, in the best interest of all property owners when retaining an independent contractor to determine all risks associated with the contractor’s work prior to the work being done and to document that the contractor is responsible for mitigating all such risks and exercising reasonable care in performing the contracted services.
If you should have any questions regarding this article or liability of property owners in general, please contact Doug Lehrer at [email protected].