Business Associations, Pages 90–96

Anderson v. Marathon Petroleum Co.

United States Court of Appeals for the Seventh Circuit, 1986

Facts:

Plaintiff, an employee of Tri-Kote, had a contract with defendant to clean the inside of its oil storage tanks by sandblasting. This created clouds of silicon dust, the breathing of which gave plaintiff silicosis, from which he died while the case was on appeal.

Tri-Kote only supplied plaintiff a "desert hood" to protect him, but this only had a wire mesh through which sand could still get in, no fresh air. Defendant's supervisory personnel saw that this was all that plaintiff was supplied with and that he often had dust on his face, but they did not try to get Tri-Kote to protect its employees better.

Procedural History:

District court granted a directed verdict for defendant.

Issue:

Is defendant liable for the torts of its independent contractor, Tri-Kote?

Rule:

A principal is generally not liable for an independent contractor's torts.

Exception:

If the activity for which an independent contractor was hired is "abnormally dangerous," the principal is vicariously liable to the same extent as the contractor.

Explanation:

An activity is abnormally dangerous if it might very well result in injury even if conducted with all due skill and caution.

Reasoning:

  • If principals were not vicariously liable for their contractors abnormally dangerous works, it could be priced into the contractors' prices. However, there would then be an incentive to hire judgment-proof contractors who cut corners on dangerous jobs to get them done cheaper.

    In this case, there is no factual basis for an inference that sandblasting is abnormally dangerous. If proper safety equipment is worn which includes a fresh air hose, there is no danger posed to anyone by the activity. While a peculiar risk posed without special precautions can also make the employer vicariously liable, this only applies to third parties harmed by the act, not to employees.

    If employers were vicariously liable for independent contractors' abnormally dangerous activities, drastic, unintended consequences would result. Homeowners may be liable for roofers injured repairing their houses. Companies would be liable for tort injuries to insured contractor's employees, while an an Illinois law says that they are only liable for workmen's compensation damages if the contractors are not insured.

  • Defendant did not know of Tri-Kote's unsafe practices until after hiring it for the job. Some states hold that if an employer discovers carelessness afterwards, he is liable if he does not take steps to correct it, but Illinois has not made such a decision. It might in the future, but federal court is not the place to argue for such a result, especially when the plaintiffs filed it here.

Holding:

No, defendant is not liable for Tri-Kote's torts. Affirmed.

Dissenting Opinion:

Swygert: In Illinois, employers of independent contractors owe a nondelegable duty to the contractor's employees when they are involved in inherently dangerous work or work with a peculiar risk of injury. The question of whether plaintiff's activity was "particularly or inherently dangerous" is a question for a jury, and plaintiffs certainly presented sufficient evidence to deserve one.

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