Mavrikidis v. Petullo

Supreme Court of New Jersey · Torts

TortsVicarious liabilityIndependent contractorsNegligent hiringDuty of careindependent contractorMajestic exceptionsretained control

Facts

Plaintiff was severely injured when Gerald Petullo drove a dump truck loaded with hot asphalt through a red light, struck her car, and overturned, spilling asphalt onto her vehicle. Clar Pine had hired Angelo Petullo and Petullo Brothers to perform asphalt and concrete work at its service station; the Petullos supplied the labor, equipment, and most materials, while Clar Pine generally supervised the renovation and paid for three loads of asphalt, including the load involved in the accident. Gerald's truck was overloaded and had a nonfunctioning right rear brake, and Gerald admitted at the scene that he could not stop because of the load. Newark Asphalt loaded the truck with 10.99 tons of hot asphalt, and Clar Pine did not know that the Petullos had suspended licenses, lacked insurance, or had defective brakes.

Issue

Whether Clar Pine, as a contractee, could be held vicariously or directly liable for the negligence of the Petullos under any of the three Majestic exceptions or a separate negligent-hiring theory. Whether Newark Asphalt owed plaintiff a common law duty not to overload the truck it loaded.

Rule

A person who hires an independent contractor is ordinarily not liable for the contractor's negligence. Liability may arise only if the contractee retained control over the manner and means of the work, hired a contractor who was incompetent or unskilled for the job and knew or had reason to know of that incompetence, or contracted for work that is inherently dangerous, meaning danger inheres in the activity itself and requires special precautions beyond ordinary risks of collateral negligence. Financial irresponsibility or lack of insurance is not incompetence, and there is no separate tort of negligent hiring of an independent contractor apart from the incompetent-contractor exception. A loader may still owe a common law duty not to overload a truck when resulting roadway injury is reasonably foreseeable.

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In Columbus, Nora Feldman hired Lakeview Stoneworks, a small masonry business, to replace the concrete apron of her storefront. Lakeview used its own workers, trucks, and tools, agreed to a fixed price for the job, and was expected to finish within one week; Nora only told the crew where customer access had to remain open. On the second day, a Lakeview driver negligently struck a bicyclist while bringing gravel to the site.

Is Nora most likely vicariously liable for the driver's negligence on the theory that Lakeview was her servant rather than an independent contractor?

Explanation. The threshold inquiry is whether the hired party is an independent contractor or a servant. Relevant factors include control over details, distinct occupation, skill, who supplies tools, duration, method of payment, whether the work is part of the hirer's regular business, and the parties' understanding. Here, Lakeview is a separate masonry business performing a short, skilled job with its own workers and equipment for a fixed price; Nora's direction about access relates to the result, not physical details of performance. Derived from Mavrikidis v. Petullo (n.d.).