Generally, under the independent contractor rule, a general employer is not ordinarily responsible for the negligence of the independent contractor or his servants. However, this is not the case with adjoining real property excavations. The owner of the land or employer is liable to pay damages to adjoining realty as the result of excavation work negligently performed by an independent contractor on the land owned by the employer.
Common law provides an absolute right to every owner of land to lateral support of that land from every other coterminous owner. Thus, the coterminous owner who conducts excavations on his/her property has a common law duty to exercise proper care and the application of proper means of support to retain the adjoining property in its natural state from sliding into the excavation. “A land owner and his contractor are both liable as joint tort feasors for negligent trespass, if negligent in excavating on the land owner’s lot, as parties to a joint enterprise if such excavation deprives an adjoining land owner of his common law right of lateral support.”[i]
An owner may be held liable for the acts of the independent contractor in certain specific fact situations. For instance, if the owner negligently employs an incompetent independent contractor or furnishes defective plans to the contractor or fail to remedy a defect created by the contractor of which he has timely knowledge, the owner will be made answerable.
An owner can also be made liable if s/he owes a duty either to the adjoining landowner or to third persons. Such a duty may be imposed by statutes or municipal regulations relating to the protection of the lateral support of adjoining land in case of excavation work.
A duty can also be imposed by way of contract. The rule relating to independent contractors can never be invoked to release a party from a liability s/he has himself assumed by a contract. Thus, an employer who assumed by contract a specific duty to protect adjoining land from damage by excavation on his own land cannot escape the liability by delegating the work to an independent contractor.[ii] In short, an owner is not relieved of liability for an excavation by employing an independent contractor where he or she has a duty by contract, statute, or ordinance to protect the adjoining property.[iii]
In addition, the owner will be held liable if the excavation ordered by him creates a nuisance per se or involves the commission of a trespass. Thus, the owner of land who employed an independent contractor to excavate on his land will be liable for trespass committed by the contractor on adjoining land in pursuance of his/her work when committed under the owner’s direction and supervision.[iv]
The owner will also be made liable when the excavation to be performed by the contractor is of such a nature as probably to lead to damage if no precautions are taken. In such a situation the employer is considered under a nondelegable duty to take all necessary precautions to avoid damage to adjoining property although the excavation to be performed is not a tort in itself. The dangerous nature and probability of damage to the adjoining land in such cases is subjected to the determination of the courts.
[i] Wharam v. Investment Underwriters, Inc., 58 Cal. App. 2d 346, 351 (Cal. App. 1943)
[ii] Waller v. Lasher, 37 Ill. App. 609 (Ill. App. Ct. 1891)
[iii] Victor A. Harder Realty & Ramp; Constr. Co. v. City of New York, 64 N.Y.S.2d 310 (N.Y. Sup. Ct. 1946)
[iv] Wegener v. Sugarman, 104 N.J.L. 26 (Sup. Ct. 1927)
