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3.9-29  Negligence of Independent Contractor

Revised to January 1, 2008

The plaintiff claims that the defendant independent contractor, <insert name of independent contractor>, had a duty to the plaintiff to use reasonable care, and failed in that duty, causing injury to the plaintiff.

In this case, there is evidence that the defendant whom the plaintiff claims to have controlled the premises <insert name of contracting party> had a contract with <insert name of independent contractor>.  You must first decide whether a contract existed between these defendants and whether it was for the performance of services that <insert name of contracting party> had a duty to perform in these circumstances.  If you find that no such contract existed, or that there was a contract but not for services that <insert name of contracting party> had a duty to perform under the circumstances, then you must find for <insert name of independent contractor>.

If you find that there was a contract and that it was a contract for services that <insert name of contracting party> had a duty to perform under the circumstances, then you must go on to evaluate whether <insert name of independent contractor> used reasonable care in performing its duty in place of <insert name of contracting party>.  If you find that <insert name of independent contractor> used reasonable care under the circumstances, then you must return a verdict for <insert name of independent contractor>.  If you find that <insert name of independent contractor> did not use reasonable care under the circumstances, you must go on to evaluate whether that failure to use reasonable care was a proximate cause of the plaintiff’s injuries.

Only if you find all of the following is <insert name of independent contractor> liable to the plaintiff:

  1. that <insert name of contracting party> controlled the premises;

  2. that <insert name of independent contractor> had a contract with <insert name of contracting party> to perform certain services that <insert name of contracting party> would have had a duty to perform under the circumstances;

  3. that <insert name of independent contractor> failed to use reasonable care to perform those services; and

  4. that the failure of <insert name of independent contractor> to use reasonable care was a proximate cause of injuries to the plaintiff.

If any one of these elements has not been proved, you must find in favor of <insert name of independent contractor> and against the plaintiff on this count.

If all of these elements have been proved, however, such that your finding is that <insert name of independent contractor> is liable to the plaintiff, that would also mean that you have found that <insert name of contracting party> is liable to the plaintiff, since <insert name of contracting party> hired <insert name of independent contractor>.

Notes

This charge falls most logically after the complete liability instruction has been given regarding the defendant who controls the premises, but before the charge on damages.

N.B.  The liability of an independent contractor is restricted to one who has undertaken for consideration and in a commercial context to perform a duty owed by another to the plaintiff.  The initial determination of whether the undertaking is such that the independent contractor owed a direct duty to the plaintiff under the circumstances is one for the court.  Only if the court first makes that determination in favor of the plaintiff do the remaining issues go to the jury.  See Gazo v. Stamford, 255 Conn. 245, 250 (2001) (independent contractor who removes snow and ice for one who controls premises owes duty to business invitees on premises).
 


 

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