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Utah: Bar Not Liable for Harm by Independent Contractor’s Employees

By Kirk Rafdal  3/24/2014
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The owner of a bar-restaurant was not liable for injuries caused to a patron by security guards who were employed by an independent contractor, a Utah appeals court ruled in dismissing the case.

Following an altercation in which he allegedly was injured by security guards in 2009, Josue Castellanos filed suit against Tommy John, a bar-restaurant. Though the security guards worked for Thor Staffing, an independent contractor, Castellanos alleged that Tommy John nevertheless was vicariously liable for the actions of the guards. The trial court, however, granted Tommy John’s motion to dismiss, and Castellanos appealed.

In support of his argument, Castellanos advanced four theories under which his case should continue to trial.

Retained Control

Under this theory, the employer of an independent contractor is liable for the contractor’s actions if that employer exercises some control over the contractor's performance. Among other things, Castellanos argued that because Tommy John established the hours during which security guards would be needed and the locations at which they would be stationed, the restaurant retained control over their work.

The appeals court agreed with the trial court, however, and found that Castellanos had presented no facts on which one could reasonably conclude that Tommy John “actively participated in how Thor or its security guards carried out their security duties.“ Tommy John never adopted policies or procedures that would apply to Thor Staffing’s work or workers, and Tommy John provided no training or guidance to Thor or its guards as to the ejection of patrons from its restaurant, the court said.

Inherently Dangerous Work

This theory states that when an employer hires an independent contractor to carry out inherently dangerous activities which pose a substantial danger to third parties, that employer remains liable for the acts of the independent contractor.  Castellanos asserted that because the work done by Tommy John’s security guards involved the use of physical force, it was inherently dangerous.

The court, however, noted that what typically has been regarded as “inherently dangerous” are activities such as mining, quarrying, railroading, and manufacturing or using explosives and volatile chemicals. Providing security for a bar or restaurant, the court said, did not rise to the level of inherent danger contemplated under this theory of law.

Nondelegable Duty

As the court explained, a “nondelegable duty means that an employer of an independent contractor, by assigning work consequent to a duty, is not relieved from liability arising from the delegated duties negligently performed.” Castellanos argued that Tommy John had an obligation to keep its premises reasonably safe and therefore could not delegate that duty and any potential liability to Thor.

The court found this unconvincing and pointed out that as a matter of public policy, it would be undesirable to apply such a rule to organizations that hire independent contractors for security purposes. “Many charities, schools, and business establishments routinely hire off-duty police officers or independent-contractor security companies to maintain the peace at their businesses or during special events,” the court wrote. “In addition to protecting their own property, the provision of security services protects innocent patrons from the inappropriate behavior of others. We can think of no reason to discourage this practice by eroding the nonliability rule.” The court also noted that under Utah law, security companies must be licensed and insured — a scheme that more than adequately safeguards members of the public from the bad acts or negligence of an independent contractor’s employee.

Negligent Hiring, Supervision and Retention

To recover under this theory, it must be shown that an employer failed to exercise reasonable care in hiring, supervising or retaining an employee who then caused injury to a third party. Castellanos alleged that Tommy John was negligence in its hiring, supervision and retention of the security guards and therefore liable to him for his injuries.

According to the court, however, Tommy John had no role in hiring the security guards. Rather it was Thor Staffing that had sole responsibility for the individual guards, the court said. Tommy John’s involvement ended with its hiring of Thor Staffing, and the trial court was correct to dismiss this claim as well.

The court affirmed the district court’s dismissal of all of Castellanos’ claims.

Castellanos v. Tommy John LLC, Utah App., No. 20120599–CA (Feb. 27, 2014).

Kirk Rafdal, J.D., is a staff writer for SHRM.


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