By Aaron E. Hall
The Wisconsin Supreme Court recently clarified in Brandenburg v. Luethi the law in Wisconsin concerning owner liability for damages caused by an independent contractor. The Brandenburg case involved a homeowner who contracted with a company to spray herbicide on trees on his property. In the course of spraying the homeowner’s trees, herbicide drifted onto 79 trees on an adjacent property, causing permanent damage to those trees. The independent contractor was insolvent and the owner of the damaged trees, Brandenburg, sought damages from the homeowner, Luethi.
Luethi denied liability, relying upon the general rule in Wisconsin, i.e., that an individual or entity that contracts for the services of an independent contractor cannot be liable to third parties for damages caused by the acts of the independent contractor in performing said services. Luethi acknowledged the long-recognized exception to this general principle of non-liability which arises when the service the independent contractor is hired to perform is “inherently dangerous.” In order for a particular activity to be considered “inherently dangerous:” (1) the activity must pose a naturally expected risk of harm; and (2) it must be possible to reduce the risk the activity poses to third parties to a reasonable level by taking precautions. However, Luethi contended that this exception did not apply because the prior cases in Wisconsin were inconsistent in applying the rule and no case had actually applied the rule in over 25 years. The Court disagreed and found that Wisconsin’s prior case law, when looked at collectively, made clear that the Wisconsin Supreme Court adhered to the inherently dangerous exception to the general principle of owner non-liability for injuries caused by independent contractors.
The Wisconsin Supreme Court determined that spraying trees with potent herbicides qualified as an “inherently dangerous” activity; however, that did not end the inquiry regarding the owner’s liability. In so finding, the Court pointed to the extensive factual record regarding the risk of drifting chemicals sprayed into the air and the degree that the associated risks could be lessened by taking certain precautions. The Court’s analysis suggests that the facts of each case will be analyzed independently and there is no bright line rule regarding what types of activities are inherently dangerous and which are not.
The Court concluded that even if the contracted-for activity is inherently dangerous, a hiring party will not be liable if he/she uses ordinary care to avoid dangers he/she knows exist or has reason to know exist. In other words, even if the activity to be performed is inherently dangerous, the hiring party will not be liable for any resulting damages as long as he/she exercises ordinary care to prevent harm to third parties.
The Takeaway
The Brandenburg case has clear implications for several industries—perhaps most obviously, the construction industry. If spraying chemicals on trees is inherently dangerous, there is little doubt a court would find most work relating to demolition and construction to be as well. Project owner/developers, as well as general contractors, need to make sure they take the proper steps to ensure that their independent contractors are performing work in a way that minimizes risks to neighboring property owners. Documenting all steps taken in this regard can help potentially stave-off any future claims regarding damages caused by independent contractors. In addition, such hiring parties should make sure their own insurance policies cover their potential liability for damages caused by independent contractors performing inherently dangerous activities.
This case also has potential implications for the food and beverage industry. It is not difficult to imagine a scenario in which a company hires a contractor to spray its crops, orchards, vineyards, and other similar lands/fields. Since spraying chemicals that can cause permanent damage to trees owned by neighboring third parties is considered inherently dangerous, the company needs to make sure it takes steps to insure any independent contractor it hires to spray the chemicals takes all necessary safety precautions.
Business owners who hire contractors should consult with an experienced attorney to review the contractor’s proposed agreement to ensure that it contains provisions appropriate to protect their business, including appropriate insurance, compliance with laws, and indemnity requirements. If you have any questions regarding this article, please contact your Davis & Kuelthau attorney or the author, Aaron E. Hall at 414.225.1411 / ahall@dkattorneys.com.