Often – actually, more often than not – construction/demolition projects involve the prime/general contractor or principal hiring subcontractors to perform various specialized tasks on the project. The general understanding in such a relationship is that the prime/general contractor or principal is not liable for the negligent act of its independent contractor. This is generally true in construction law.
There is, however, a very important exception to this rule. The exception comes into play when the activity being performed is “inherently dangerous.” Where the independent contractor is performing a task that is deemed inherently dangerous, the duty of care owed to others is nondelegable, and the prime/general contractor or principal may be liable to a third party for the independent contractor’s negligence. The public policy underlying the “inherently dangerous” exception recognizes and accounts for the fact that the prime/general contractor or principal is in a much better position than the unwitting third party to take adequate protection against potential harm caused by an inherently dangerous activity.
Whether the work being performed is “inherently dangerous,” is a question of fact for a factfinder, such as judge, jury, arbitrator, etc. The factfinder must consider whether: (1) the activity poses a naturally expected risk of harm; and (2) it is possible to reduce the risk to a reasonable level by taking precautions. An activity likely will be deemed “inherently dangerous” where the expected risk of harm is great and the possibility to reduce the risk through precautionary measures is low.
Notwithstanding this general analysis, there are some activities that have been deemed “inherently dangers” as a matter of law. Wisconsin courts have held that, among other things, certain demolition, construction, and excavation activities are “inherently dangerous” for purposes of holding a prime/general contractor or principal liable for the negligent acts of its independent contractor.
It is critical that prime/general contractors and principals understand the gravity and reach of the “inherently dangerous” exception to the general rule concerning liability for the negligent act of independent contractors. Failure to understand or heed the exception may expose contractors and principals to unnecessary liability.
If your company has questions regarding the “inherently dangerous” exception and/or its application to a project, contact the experienced attorneys at McDonald & Kloth, LLC.