Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <a href="https://www.wcmlaw.com/wp-content/uploads/2020/10/Krough-v.-Calpine.pdf"><em>Krough v. Calpine</em>, </a>the United Stated District Court for the District of New Jersey analyzed whether a principal/contractee is responsible for the wrongful conduct of an independent contractor. While granting summary judgment against the Plaintiff, the Court reiterated the 3 requirements available to find a Principal liable.</p>
<p style="text-align: justify;">Calpine Corporation (“Calpine”) owned a powerplant in New Jersey (the “Property”). Krough was employed by an independent contractor, Brandenburg Industrial Service Company (“Brandenburg”), to perform demolition at the Property. Krough was injured while working at the Property and brought a worker’s compensation claim against Brandenburg and a negligence action against Calpine. While Krough conceded that "is well settled law in New Jersey, [] that one who hires independent contractors is not liable for the wrongful conduct of those contractors in the performance of their duties and services." See Baldasarre v. Butler, 625 A.2d 458, 465 (NJ 1993), Krough argued that there are exceptions that exist when a principal/contractee is responsible for the wrongful conduct of its independent contractors. Those exceptions exist when: (1) the principal retains control over the manner and means of doing the work the contractor provided; (2) the principal has engaged an incompetent contractor; or (3) the services provided by the contractor are a nuisance per se (i.e., "inherently dangerous"). See Majestic Realty Associates, Inc. v. Toti Contracting Co., 153 A.2d 321 (NJ 1959).</p>
<p style="text-align: justify;">Here, Krough was unable to prove that the first exception existed because Calpine did not have the requisite control of the means and methods of the work, and only had merely supervisory power over the result. Krough conceded that the second exception failed because there is no presumption of negligence of an employer who hires an independent contractor that, after being hired, is negligent in the performance of his/her duties. See Mavrikidis v. Petullo, 707 A.2d 977 at 986 (NJ 1998). Lastly, Krough also averred that demolition is “inherently dangerous,” however, the Court noted that an inherently dangerous activity alone does not constitute a cause of action against the landowner; the plaintiff’s injuries must also arise from the activity that is defined as inherently dangerous. See Rodrigues v. Elizabethtown Gas Co., 250 A.2d 408, 413 (App. Div. 1969). Krough was merely a “spotter” for a co-worker who was operating heavy machinery, and he was not involved in any inherently dangerous activity at the time of his injury.</p>
<p style="text-align: justify;">The Court granted Calpine’s motion for summary judgment and found that Krough did not have a prima facie case of negligence against Calpine. The opinion confirms the three strict exceptions when a principal may be liable for the wrongful conduct of an independent contractor. It also highlights that partaking in an “inherently dangerous activity” is not enough to survive the well-established rule that a principal is not liable for the wrongful conduct of its independent contractors.</p>
Thanks to Emily Finnegan for her contribution to this post. If you have any questions or comments, please contact <a href="mailto:tbracken@wcmlaw.com">Thomas Bracken</a>.