Becker v. Poling Transportation Corp.

United States Court of Appeals for the Second Circuit · Torts

TortsMaritime tortsNegligent hiring of independent contractorSuperseding causeJoint and several liabilityindependent contractornegligent selectiondirect liability

Facts

Poling employees Becker and Jurgens were burned when petroleum on the CLARA P ignited during transfer from the barge to an Ultimate truck. Metro agreed to take the petroleum and was told that a vacuum truck was needed because the barge's pumping mechanism was defunct, yet Metro hired Ultimate even though Metro knew Ultimate had no vacuum truck. When Ultimate arrived without a vacuum truck, Becker, Jurgens, and the driver decided to use a portable pump; after one compartment was filled, a fire broke out when the pump was restarted. There was no serious dispute that the fire was caused by using the portable pump instead of a vacuum truck, and the jury found Ultimate negligent and found that Ultimate lacked competence and that Metro knew or should have known Ultimate was unqualified.

Issue

Whether Metro could be held liable based on the jury's finding that it negligently selected Ultimate, even though the jury was not specifically asked whether that negligence was a proximate cause of plaintiffs' injuries. Also, whether Becker's and Jurgens' use of the portable pump was a superseding intervening cause that relieved Metro of liability.

Rule

A party that is itself negligent in selecting an incompetent independent contractor is liable for its own negligence, which is direct rather than vicarious liability. If a factual issue such as proximate cause is omitted from a special verdict form and a party does not demand its submission before the jury retires, the party waives jury trial on that issue under Rule 49(a), and the omitted finding is treated as consistent with the judgment. Where the negligence of two tortfeasors produces a single indivisible harm, there is no apportionment and both are jointly and severally liable. An intervening act is superseding only if it is extraordinary, unforeseeable, or far removed from the risk created by the defendant's negligence.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Newark, a warehouse operator hired Harborline Recovery to remove corrosive liquid from storage tanks after being told the job required sealed extraction equipment. The operator knew Harborline did not own sealed extraction equipment, but hired it anyway. Harborline improvised, and a dockworker was badly injured when fumes ignited.

If the dockworker sues the warehouse operator, which is the strongest characterization of the operator's liability under the governing rule?

Explanation. The majority treated negligent selection of an incompetent independent contractor as the employer's own negligence, not merely vicarious liability. Where the contractor lacked competence for the hired task and the employer knew or should have known of that lack of qualification, the employer is directly liable for resulting injury. (Derived from Becker v. Poling Transportation Corp. (n.d.).)