Earl Doucet hired Gammon Enterprises, LLC to perform roofing repairs on a building in Metairie, Louisiana. While performing the work, Gammon accidentally started a fire causing damage to the building. Several claims were filed as a result of the fire. The trial court found Gammon caused the fire and was liable for damages, and also found Gammon was an employee of Doucet, and not an independent contractor. As an employee, Doucet was vicariously liable for Gammon’s negligence. Doucet and his insurer appealed.
Vicarious liability does not apply when an independent contractor relationship exists. In determining whether there is such a relationship, the courts consider the following factors: (1) whether there is a valid contract between the parties; (2) whether the work being done is of an independent nature, such that the contractor may employ non-exclusive means in accomplishing it; (3) whether the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to control and direction of the principal, except as to the result of the services rendered; (4) whether there is a specific price for the overall undertaking agreed upon; and (5) whether the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either party without a corresponding liability for its breach. The single most important factor is the right of an employer to control the work of the employee.
The trial court found no contract existed between Gammon and Doucet for the work, Doucet ultimately had the right of control over the project, and Gammon would have had to perform as requested if Doucet had exerted his authority. Further, it found work on the roof was not set for a specific time and could be terminated at will by Doucet.
The court of appeal held a valid and enforceable contract requires capacity, consent, a certain object, and a lawful cause. There must be a meeting of the minds of the parties to constitute the requirement of consent. Although there was apparently no written contract, the court found a valid contract, nevertheless, existed between Gammon and Doucet for the work.
Noting that a principal can give direction regarding the result of services to be rendered without changing the relationship from that of an independent contractor to an employee, the court of appeal found Doucet did not control Gammon’s work. Gammon testified he received no instruction from Doucet regarding how to perform the roof repairs; no one told him or his workers what to do and he alone instructed his workers. Gammon provided the tools and trucks to do the job, and provided a trash trailer at the site. The court of appeal concluded Gammon performed the work without input from Doucet, and Doucet exercised no control over the methods Gammon used. Gammon was an independent contractor.
Even though an independent contractor relationship exists, a principal may be responsible for offenses committed by an independent contractor when: (1) the work undertaken by the independent contractor is inherently or intrinsically dangerous, or (2) the person for whom the work is performed gives express or implied authorization for an unsafe practice or has the right to or exercises operational control over the method and means of performing the work. There was nothing in the record to support either exception. The court of appeal held the trial court erred in finding Doucet vicariously liable for Gammon’s negligence.
It was also contended Doucet was liable for Gammon’s fault under a theory of negligent hiring. The trial court found Doucet was independently liable for his failure to act reasonably as a property owner when he hired Gammon. One who hires an irresponsible independent contractor may be independently negligent. The court must consider the principal’s knowledge at the time of the hiring. There was no evidence of negligent hiring, and the trial court was manifestly erroneous in determining Doucet was independently liable. Doucet had used Gammon on prior roofing projects, and there was no indication of any problems with the prior work. Gammon obtained a temporary contractor’s license after Hurricane Katrina, but did not subsequently obtain a license. Gammon was insured at the time the project was bid, but the insurance subsequently lapsed. The mere fact Gammon did not possess a contractor’s license at the time of the incident, according to the court of appeal, was not, in and of itself, sufficient to find Doucet independently negligent in hiring Gammon. Further, there was no indication Doucet knew or should have known Gammon was not insured when hired. The judgment of the trial court finding Doucet was vicariously liable for Gammons acts, and was independently liable for negligent hiring was reversed. Certified Cleaning & Restoration, Inc. v. Lafayette Insurance Company, 10-948 (La.App. 5 Cir. 6/14/11), 67 So.3d 1277.