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Clean up on Aisle 9-The Retained Control Exception to Independent Contractor Rule

February 22, 2018

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In Pennsylvania, a property owner is usually not liable for the injuries of an independent contractor’s employee, but there is an important exception of which property owners need to be aware.
In <a href="http://Clean up on Aisle 9-The Retained Control Exception to Independent Contractor Rule"><em>Santiago v. Wegmans</em></a>, Wegmans retained GCA, an independent contractor that sent Santiago to perform janitorial services at a Wegmans retail location.  The Plaintiff slipped and fell on ice while sweeping dock plates near the frozen foods warehouse.  Plaintiff sued Wegmans alleging it negligently maintained its property.  Wegman’s moved for summary judgment arguing it was not liable for the injuries sustained by an independent contractor’s employee.  Plaintiff opposed by invoking the “retained control” exception, where a property owner can be liable for the injuries an independent contractor if the property owner retains “control over the manner in which the work is done.”
The Court found that Wegman’s exerted significant control over GCA’s janitorial services, as evidenced by the service agreement that specified how each floor type was to be cleaned, and even specified the cleaning products to be used.  Accordingly, the Court denied the motion.
The retained control exception is important because it prevents property owners from controlling the services of an independent contractor, as they would with an employee, while also escaping the negligence liability that would usually accompany an employment relationship.  The Court looked to the <em>Nertavich v. PPL Elec. Utilities </em>decision in which the Court noted that engaging an independent contractor “implies that the contractor is independent in the manner of doing the work contracted for,” and “presumably knows more about doing it than the party who by contract authorized him to do it.”  There was clear evidence in the <em>Wegmans</em> case that the Defendant was trying to control the specific manner in which the janitorial work was completed.  Property owners must ensure that their independent contractors are being treated as “independent.” If not, the property owner may actually be responsible for any injuries resulting from “clean up on aisle 9.”
Thanks to Malik Pickett for his contribution to this post.


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