Generally, an owner is not liable for the negligence of an independent contractor hired by such owner unless the work contracted to be done is intrinsically dangerous to result in injury to another. However, the liability of an excavator for withdrawal of lateral support for adjacent land or building is almost absolute and the excavator cannot take refuge under the argument that the work was performed by an independent contractor. According to the Restatement Second, Torts, “one who employs an independent contractor to do work which the employer knows or should know to be likely to withdraw lateral support from the land of another is subject to the same liability for the contractor’s withdrawal of such support as if the employer had retained the work in his or her own hands.”[i]
An excavator is not liable for damage to structures on adjoining land caused by excavation work performed by an independent contractor on the excavator’s land only when the contractor is competent enough to perform the work and had been and careful in carrying out the execution.
However, the situation is different when the excavator was under a duty by statute, ordinance, or contract to protect the adjoining structures. In such a case, the excavator will be answerable for the negligent or hazardous execution of work by the independent contractors. For instance, some statutes specifically require the excavator to provide notice of the proposed excavation to adjoining owners of buildings or to take precautions against injury to adjoining structures.
The excavator will also be liable for damages to the adjoining structures if the excavation was foreseeable from the nature of the work undertaken by the independent contractor.
The excavator will be held liable for the acts of the independent contractor if the excavator expressly authorized the independent contractor to perform the work in a specified manner and had retained control of the work and the damage resulted from the contractor’s negligence. For instance, if the excavator was negligent in not ascertaining in advance the character of the soil to be excavated, such person will be held liable for the acts of the independent contractor. [iii]
If the excavator fails to rectify a defect created by the negligent act of the independent contractor of which the excavator had timely knowledge, the excavator cannot take refuge under the theory of non-liability by hiring an independent contractor. The excavator is duty bound to hire skilled personnel as independent contractors and in the event of damages resulting from the acts of unskilled contractors, the excavator will be held liable for negligence.[iv]
A covenant not to sue an independent contractor for damages from an excavation has been held not to release the owner where he or she is otherwise liable. [v]
[i] Restatement Second, Torts § 422A
[ii] S. H. Kress & Co. v. Reaves, 85 F.2d 915 (C.C.A. 4th Cir. 1936)
[iv] Stockgrowers’ Bank of Wheatland v. Gray, 24 Wyo. 18 (1916).
[v] Casper Nat’l Bank v. Jones, 79 Wyo. 38 (Wyo. 1958)