A large and powerful corporation makes a financial decision to use a third party to provide services that it owes your client pursuant to a contract. Using a third party, non-employee is a widespread practice of most corporations and this one is no different. Your client has no idea that the services it will receive are not from an actual employee of the corporation but from a guy that the corporation paid money to in order to provide the promised services to your client. The third party is negligent and that negligence results in your client suffering a traumatic brain injury. Pretty scary, huh? It gets worse.

You send a notice of representation in which you provide some basic facts regarding the corporation’s liability and your client’s injuries. In response, you receive a letter from the corporation’s lawyer which asserts that the guy who negligently brain injured your client was never an employee, but just an independent contractor, and of course, the guy has no liability insurance coverage. The letter attaches a copy of the 2 page agreement between the corporation and the guy who did the work. The phrase “independent contractor” is mentioned 10 times in the agreement.

In drafting your complaint against the corporation and the bad actor, you should thoroughly review Florida Standard Jury Instruction 402.9and the case law related to it. Fla. Std. Jury Inst 402.9 provides a good start in determining the law regarding negligent selection, hiring, and retention of an independent contractor and also details the legal requirements to prove that the bad actor was either an actual agent or an apparent agent of the corporation for which the corporation is then vicariously liable.

Florida Standard Jury Instruction 402.9 reads in relevant part as follows:

a. Agency

(1) Employment, including independent contractor and exceptions:

. . . .

A person is, however, responsible for the negligence of an independent contractor if [the independent contractor is an [actual] [or] [apparent] agent of that person], [the employer did not exercise due care in the [selection] [or] [retention] of the independent contractor] [or] [the employer undertook to perform the services resulting in injury to (claimant).] *

*The bracketed language contained in the last two paragraphs is only to be used when there is a claim of independent contractor status. SeeCarlisle v. Carnival Corp., 864 So.2d 1 (Fla. 3d DCA 2003); Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla. 2003). If an exception to the independent contractor status is claimed, then the applicable portions of the following provisions should also be given.

[(Name) is an agent if (defendant) authorized [him] [her] to act on (defendant’s) behalf.] [(Name) is an apparent agent if, by words or conduct, (defendant) caused or allowed (claimant) to believe that (name) was an agent of and had authority to act for (defendant).] A person is responsible for the negligence of [his][her] independent contractor if, at the time and place of the incident, the independent contractor was an [agent] [or] [apparent agent] of the employer and was acting within the scope of his or her [apparent] authority.*

*If the court determines that issues on both actual agency and apparent agency should be submitted to the jury, both bracketed sections should be used with appropriate transitional language.

[In [hiring] [or] [retaining] another to perform services, the employer must exercise due care to assure that the person is competent to perform the services. A person is responsible for the negligence of [his] [her] independent contractor if, in [hiring] [or] [retaining] the independent contractor, the employer failed to exercise due care.]

Insigna v. LaBella 543 So.2d 209 (Fla 1989); F.S. 766.110

[When a [person] [facility] undertakes to perform services, [he] [she] [it] cannot transfer the obligation to perform those services to an independent contractor and remains responsible for the negligence of [his] [her] [independent contractor.]


(2) Agency without claim of independent contractor:

whether (name) is an agent of (defendant). [(name) is an agent of (defendant) if (defendant) authorized [him] [her] to act on(defendant’s)behalf.] [(name) is an apparent agent if, by words or conduct, (defendant) caused or allowed (claimant) to believe that (name) was an agent of and had authority to act for (defendant).] A person is responsible for the negligence of an [agent] [or] [apparent agent] if at the time and place of the incident complained of the [agent] [or] [apparent agent] is acting within the scope of [his] [her] [apparent] authority.

NOTE ON USE FOR 402.9a(2)

Roessler v. Novak, 858 So.2d 1158 (Fla. 2d DCA 2003); Orlando Regional Medical Center v. Chmielewski, 573 So.2d 876 (Fla. 5th DCA 1990). If the court determines that issues on both actual agency and apparent agency should be submitted to the jury, both bracketed sections should be used with appropriate transitional language.

The good news? The criteria for proving that an active tortfeasor was either an independent contractor who was negligently selected, hired, or retained or that he or she was an actual agent or apparent agent are logical and based on common sense. The bad news? Predictably, the process of establishing these factors to survive a Motion for Directed Verdict is a highly fact specific inquiry where one size does not fit all. However, the silver lining for victims is that most Florida appellate decisions require that the issue of agency is one for a jury.

Regarding negligent selection, hiring, and retention of an independent contractor, if you review Suarez v. Gonzalez, 820 So.2d 342, 344 (Fla. 4th DCA 2002), you will see that the Fourth District Court of Appeal provides an informative foundational analysis of Florida law on this issue. The Court notes that the law developed largely from McCall v. Alabama Bruno’s Inc. 647 So.2d 175, 177 (Fla. 1st DCA 1994), Restatement (Second) of Torts ‚§409, ‚§411 (1965) and Prosser and Keeton ‚§71, 5th ed. (1984). The issue centers around what acts by the employer constitute “the exercise of reasonable care.”

Importantly, there are a few themes that emerge when determining the level of diligence required by the employer in selecting, hiring, or retaining an independent contractor. First, “the amount of care which should be required is proportionate to the danger involved in failing to use it” Restatement, § 411, cmt. c. This means that where there is a risk of harm to others if the work is not skillfully performed, the employer must exercise a high level of care to confirm that the person being hired for the job is duly qualified to do the job properly and without danger to others.

Second, the “extent of the employer’s knowledge and experience in the field of work to be done” is critical. Restatement, § 411, cmt. c. For example, a homeowner with a plumbing problem is not generally required to spend weeks investigating the licensed plumber that he/she hires to fix leaking pipes. In contrast, a national company that has expertise in cargo transport that sub-contracts with truckers for interstate freight services needs to make sure that any driver it contracts with to haul cargo across the country is truly competent to safely perform the job.

Finally, the third factor looks to the relationship between the parties to see if there is any common law or statutory law imposing a higher duty on the employer, such as a non-delegable duty. In Suarez, the case centered upon whether a landlord’s daughter-in-law was negligent in selecting an independent contractor (who she first met when she saw him driving down the street with some cabinets in his van) to hang a kitchen cabinet that later fell from the wall and struck and paralyzed the tenant. Id at 344. The Court held that the landlord-tenant relationship imposes a nondelegable duty of care upon a landlord who undertakes to make repairs or improvements for the benefit of the tenant. Id at 346.

Overall, if the corporation chooses to pay someone else to do what it promised for pay to do for someone else, that corporation is well-advised to select and hire a person who clearly has the requisite training and experience to safely and adequately perform the services.

For a discussion of the case law regarding actual agency and apparent agency, please look for my article in the March edition of the Barrister.