AMI 709 Liability of Employer for Employment of Incompetent Independent Contractor

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 709

Arkansas Model Jury Instructions-Civil

December 2023 Update

Arkansas Supreme Court Committee On Jury Instructions-Civil

Chapter 7. Agency—Employment—Partnership—Joint Enterprise—Imputed Liability

AMI 709 Liability of Employer for Employment of Incompetent Independent Contractor

(Plaintiff) claims that (defendant) negligently hired (independent contractor) and has the burden of proving each of the following five essential propositions:

First, that (plaintiff) sustained damages;

Second, that (defendant) knew or should have known that (independent contractor) was incompetent to perform the work (defendant) hired (independent contractor) to do;

Third, that (independent contractor) [negligently][recklessly][incompetently] performed such work;

Fourth, that (defendant) was negligent in hiring (independent contractor); and

Fifth, that (defendant's) negligence was the proximate cause of (plaintiff's) damages.

[If you find from the evidence that each of these propositions has been proved, then your verdict should be for plaintiff; but if, on the other hand, you find that any of these propositions has not been proved, then your verdict should be for defendant.]

NOTE ON USE

Do not use the bracketed last paragraph if the case is submitted on interrogatories.

COMMENT

This instruction is based on Ozan Lumber Co. V. McNeely, 214 Ark. 657, 217 S.W.2d 341 (1949); Arkansas Pools, Inc. v. Beavers, 281 Ark. 109, 661 S.W.2d 395 (1983), and Stoltze v. Arkansas Valley Electric Cooperative Corp., 354 Ark. 601, 127 S.W.3d 466 (2003).

As a general rule, an employer is not responsible for the negligence of his or her independent contractor; but “an employer may be held liable for the conduct of a careless, reckless, or incompetent contractor when the employer was negligent in hiring the contractor.” Stoltze, 354 Ark. at 607, 127 S.W.3d at 470. The party alleging negligence must prove that the employer either knew or should have known of the independent contractor's incompetence to perform the work for which the contractor was hired. Newton v. Clark, 266 Ark. 237, 241, 582 S.W.2d 955, 957 (1979). See also Little v. McGraw, 250 Ark. 766, 467 S.W.2d 163 (1971) (finding evidence sufficient to support a claim of negligent hiring of a cropduster whom defendant “didn't think” had a proper license and whose incompetence injured plaintiff).

“It is not enough, however, to prove that the work of the independent contractor was negligently performed since no presumption arises as to the negligence of the employer as a result of the negligence of the independent contractor.” Arkansas Pools, Inc., 281 Ark. at 111, 661 S.W.2d at 396. Further, “an employer who has had previous successful experience with an independent contractor cannot be held liable on the theory of negligent supervision.” Id. (citing W. Ark. Telephone Co. v. Cotton, 259 Ark. 216, 219, 532 S.W.2d 424, 426 (1976)).

End of Document