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Where Excavator Retains Control or Damage Results from Authorized or Necessary Acts

General contract law stipulates that when a person enters into a contract with another to do some act, which when done, necessarily invades the right of a third person or injures his property, each of the contracting parties becomes liable to the injured person as though both had performed the act. Employing an independent contractor to perform the work will not minimize the liability of the person who engages such independent contractor, especially when a third person sustains injury as a result of such acts.  This is because in the event of injury to third parties, law presumes that a procurer of services is answerable in the same level as the doer of the wrongful act.

Thus, where an excavator retains the right of supervisory control of the working operations, he or she cannot avoid liability for the contractor’s negligence causing damage to adjoining buildings. Similarly, when the owner has expressly authorized the independent contractor to undertake the excavations in a particular manner and the acts of the independent contractor resulted in damages to the adjoining property owner, the owner will be made liable for such damages.

[i] Olsen v. Upsahl, 69 Ill. 273 (Ill. 1873)

[ii] Palmer v. Lincoln, 5 Neb. 136 (Neb. 1876).

[iii] De Palma v. Weinman, 15 N.M. 68 (N.M. 1909)

[iv] Weinman v. De Palma, 232 U.S. 571 (1914).


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