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By
Scott S. Shepardson
Thelen Reid Brown Raysman & Steiner LLP
Homeowners
who hire unlicensed contractors to perform work may expose
themselves to liability for injuries suffered by employees
of the contractor or by third parties.
The
West Virginia Supreme Court held a homeowner for injuries
suffered by a cable television installer proximately caused
by work performed by an unlicensed electrician. Kizer
v. Harper, 561 S.E.2d 368 (W.Va. 2001).
The
decision actually went against the son of the homeowner,
Charles Harper, who hired an electrician, Larry Vance, to
install a new circuit breaker box on his mother's home.
Some
time after the work was completed, James Kizer, a CableComm
employee was injured when he fell from a power pole connected
to the house. He alleged that faulty wiring of the circuit
breaker box on Harper's mother's home was the proximate
cause of his injuries. At trial, a jury awarded Kizer $1,299,000
in damages. Harper was found 1 percent liable, but because
West Virginia is a joint-and-several liability state, he
was liable for the entire judgment.
On
appeal, Harper argued that the plaintiff had failed to prove
Harper was negligent in hiring Vance to perform the electrical
work. The court noted that under West Virginia law, a person
performing electrical work for pay must possess a valid
license, and violation of any statute is prima facie
evidence of negligence. But the court also noted that the
presumption of negligence is rebuttable. Accordingly, the
question of whether the homeowner was negligent was a question
for the jury.
The
court noted that the jury was not presented with a special
verdict form or interrogatories, so there were no specific
findings on particular issues. Accordingly, the court held
that Harper had failed to rebut the presumption and that
the jury must have determined Harper was negligent because
it found him 1 percent responsible.
Harper
also asserted the jury instructions led the jury to believe
it was proper to presume that installation of the circuit
breaker box was an inherently dangerous activity. Classifying
the work as inherently dangerous subjected Harper to a heightened
level of responsibility. Ordinarily, a person who hires
an independent contractor to perform work is not responsible
for injuries caused by the negligence of the independent
contractor. When the work hired is inherently dangerous,
however, the owner has a non-delegable duty of heightened
care. That duty cannot be discharged by hiring an independent
contractor.
The
court found that Harper failed to offer a jury instruction
on the issue of prima facie negligence and that his
attorney failed to object to the jury instruction characterizing
electricity as inherently dangerous. Because the objection
was not preserved, the court did not decide whether installing
a circuit breaker box is inherently dangerous. Accordingly,
the trial court's holding that installation of the circuit
breaker box was inherently dangerous and that a homeowner
could be held liable for injuries resulting from such work
was left undisturbed.
Last,
Harper argued that there was insufficient evidence to support
the finding and that the verdict constituted a miscarriage
of justice. The court held that there was sufficient evidence
to support the verdict and that overturning the verdict
would require ignoring applicable tort law. The court affirmed
the judgment of $1,299,000.
The
dissent pointed out that the majority was subjecting homeowners
in West Virginia to liability not previously contemplated
outside the commercial arena. The result of the holding
is that a homeowner in West Virginia who hires a contractor
to perform work that is dangerous may be found liable for
injuries to a third persons injured by that work, regardless
of any negligence on the part of the homeowner.
The
dissent noted that the Michigan Court of Appeals had considered
the same question but determined that homeowners could not
be held liable for the negligence of independent contractors
performing inherently dangerous work because homeowners
were not aware of what constituted special dangers or peculiar
risks. Justus v. Swope, 457 N.W.2d 103 (Mich.Ct.App.
1990). That case involved a tree removal service employee
injured during a tree topping procedure.
There,
the court noted that the homeowners had no experience in
tree removal procedures and had no way of knowing what constituted
deviation from normal procedures. Consequently, the homeowners
had no way of knowing what activities would create an increased
risk to the employees of the tree removal service. The court
there noted that the tree service was certified in tree
removal, a fact known to the homeowner. Accordingly, the
court declined to impose liability on the homeowners.
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For more information about the issues covered in this report, please contact Scott S. Shepardson in our San Francisco office at 415-369-7184 or at sshepardson@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2002 Thelen Reid Brown Raysman & Steiner LLP
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