Introduction
This week, the Minnesota Supreme Court in Alonzo v. Menholt[1] expressly adopted negligent selection of an independent contractor as a cause of action in Minnesota courts. In establishing that a general contractor may be held liable for the negligence of selecting an independent contractor, the Court also laid out several factors used to evaluate such a claim.
Establishing the Tort of Negligent Selection of Independent Contractors
In recognizing this new tort, the Court primarily relied on the four factors for adopting a new cause of action as set forth in Larson v. Wasemiller.[2] First, the Court considered whether the tort is inherent in, or the natural extension of, an established common law right. Minnesota recognizes the tort of negligent credentialing and negligent hiring of an employee, both being analogous to the negligent selection of an independent contractor. Additionally, in establishing the tort of negligent credentialing, the Court found that it was a natural extension of negligent selection of an independent contractor, which was recognized in the Restatement (Second) of Torts, Section 411.
Second, the Court contemplated whether the claim has been recognized in other common law states. The majority of other states recognize the tort of negligent selection of an independent contractor and, thus, it is reasonable for Minnesota to recognize the tort as well.
Third, the Court evaluated whether recognizing the tort would create tension with other applicable law. The respondents argued that the tort would create tension with the general rule that principals are not liable for the actions of their independent contractors. The Court rejected this argument, saying that the tort holds a principal liable for its own negligence in selecting an independent contractor, rather than for the negligent act(s) of the independent contractor itself.
Because the Court determined that the tort did not create any tension with existing laws, the Court did not need to address the fourth and final factor, which considers whether tension between a new tort claim and other applicable law is outweighed by the importance of additional protections. The respondents in Alonzo expressed concern that permitting claims for negligent selection of an independent contractor would impose an unreasonable burden upon companies that utilize independent contractors. However, after evaluating the Larson factors, the Court concluded that Minnesota common law recognizes a claim for negligent selection of an independent contractor.
Defining the Framework for the Claim
The Alonzo Court laid out the elements and framework for the claim of negligent selection of an independent contractor. First, a claimant must establish that the principal breached its duty to exercise reasonable care in selecting a competent and careful contractor.[3]
While the “reasonable care” standard is fact dependent, two factors carry significant weight. The first factor provides that the amount of care required is proportionate to the danger involved in failing to use it. More dangerous work requires greater care in selecting an independent contractor. The second factor evaluates whether the work lies within the competence of the average person or requires special skills or training. When there is a higher risk of danger if the work is done improperly, the principal bears a greater burden of ensuring the independent contractor has the requisite special training or skills. When there is a lower risk of danger for improper work, the principal does not have to exercise as great of care in vetting the independent contractor.
Second, a claimant must prove that the principal’s negligence in selecting the independent contractor was a proximate cause of their injuries. The plaintiff must show that the harm they suffered resulted from some quality in the independent contractor that made it negligent for the principal to reasonably trust them to do the work. Had the principal exercised reasonable care, the principal would have known not to select the independent contractor, and the harm to the claimant would not have occurred. This is the same as a traditional negligence claim.
Takeaways from Alonzo
While Alonzo established a new claim in the tort of negligent selection of an independent contractor, it is unlikely to generate a lot of independent litigation. The Court anticipated that claimants who allege that an independent contractor’s wrongdoing was one cause of their injury will simply tack on a claim that the principal contractor’s negligent selection of the independent contractor was another cause of their injury, keeping these claims together.
Another potential consequence is that principal entities may need to expend greater efforts and resources to ensure their independent contractors are qualified. The Court addressed this, saying that principals who are required to vet independent contractors more thoroughly may often be entities with a greater capacity to understand the work and risks at issue. These entities are typically better equipped to ensure their independent contractors are competent and careful. Therefore, the Court does not expect the tort of negligent selection of an independent contractor to impose many additional burdens on principal entities.
