December 2013 - Parks & Recreation - 27

dition on the premises of an agency
created by the independent contractor.
In the case of Patton v. Spa
Lady Inc., 772 P.2d 1082 (Ak.
4/28/1989), the issue before the
Alaska state supreme court was
" whether the employer of an independent contractor is vicariously
liable to a person who is injured on
the employer's business premises by
an unsafe condition in the premises
as a result of the independent contractor's negligence. "
Plaintiff James Patton was visiting
a fitness center operated by defendant
Spa Lady when he received an electrical shock from an electrical outlet
while leaning over a vanity sink to
inspect himself in the mirror. The
electrical outlet had been installed by
two independent contractors, J.D.'s
Electric Inc. (J.D.'s) and Alyeska
Electrical Inc. (Alyeska). The parties
all agreed that Spa Lady would be
entitled to a summary judgment dismissing Patton's claims if Spa Lady
was not vicariously liable for the negligence of J.D.'s and Alyeska.
As noted by the state supreme
court, " [t]he general common-law
rule, embodied in section 409 of the
Restatement (Second) of Torts (1965),
sometimes called the 'independent
contractor rule,' is that an employer
is not vicariously liable for the torts
of its independent contractor. " On
the other hand, the court acknowledged that " [t]his rule is subject to
a host of exceptions, codified in sections 410-29 of the Restatement. " In
this particular instance, Patton argued that " the exception set forth in
section 422 " would " impose liability
vicariously on Spa Lady for the negligence of J.D.'s and/or Alyeska. "
As cited by the state supreme
court, section 422 of the Restatement regarding " Work on Buildings

and Other Structures on Land " provided as follows:
A possessor of land who entrusts
to an independent contractor construction, repair or other work on
the land, or on a building or other
structure upon it, is subject to the
same liability as though he had retained the work in his own hands
to others on or outside of the land

possessor's independent contractor,
the possessor should bear any loss because the possessor is in a better position to know what risks of injury exist and to take steps to guard against
them. Spa Lady was also in a better
position than was Patton to contract
for insurance or indemnification to
cover any damages caused by an independent contractor's negligence.

According to the state supreme court, " vicarious
liability is a doctrine designed to ensure that
a financially responsible party is available to
compensate the injured victim. "
for physical harm caused to them by
the unsafe condition of the structure
(a) while the possessor has retained
possession of the land during the
progress of the work, or (b) after he
has resumed possession of the land
upon its completion.
According to the state supreme
court, " vicarious liability is a doctrine designed to ensure that a financially responsible party is available
to compensate the injured victim. "
In this particular instance, the court
found Patton was one of the " others
on or outside of the land " to whom
Spa Lady is vicariously liable under
section 422 of the Restatement. In
addition to section 422 of the Restatement, the state supreme court
provided the following reasoning for
its holding that an " employer of an
independent contractor may be held
vicariously liable for injuries caused
by the negligence of the latter " :
Between an innocent possessor of
land and an innocent third party injured because of the negligence of the

As cited by the state supreme
court, " utilizing the rule stated in
section 422 of the Restatement comports with decisions from several
other states. " In particular, the court
noted that numerous decisions have
held " business owners liable for injuries sustained on their premises
by persons other than employees of
independent contractors where the
injuries were caused by the independent contractors' negligence. "
As a result, the state supreme court
reversed the summary judgment of the
trial court in favor of Spa Lady and remanded (i.e., sent back) the case to the
trial court for further proceedings to
consider whether Spa Lady was vicariously liable for the alleged negligence
of its independent contractors.
James C. Kozlowski, J.D., Ph.D., is an
attorney and associate professor in the
School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.
edu). Webpage with link to Law Review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

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