WPI 50.11 Independent Contractor—Definition

For the scope of this instruction, see WPI 50.00 (Introduction).

Use this instruction along with WPI 50.01 (Agent and Principal—Definition) and WPI 50.11.01 (Distinguishing Between Agent and Independent Contractor) when there is an issue whether a person is an agent or an independent contractor. This instruction is designed for tort cases only.

Do not use this instruction in cases in which the duty is nondelegable. See discussion below and WPI 12.09 (Nondelegable Duties) for a discussion of work site safety.

Do not use this instruction for a case in which a litigant is prohibited from denying responsibility for the act of the person engaged, whether the person hired is an employee, agent, or independent contractor.

Generally, a principal is liable for the negligence of an agent performing within the course and scope of employment, but not for the negligence of an independent contractor. See DeWater v. State, 130 Wn.2d 128, 137, 921 P.2d 1059 (1996). In light of recent case law on this topic (see discussion of workplace safety below and in the Comment to WPI 12.09 (Nondelegable Duty)), care should be taken in drafting instructions under circumstances involving workplace safety.

The essential difference between the two relationships is the control over, or right to control, the manner or means of performing the work. If the employer or principal exercises or retains the right of control over the manner or means by which the work is to be performed, then the one performing the work is an agent. On the other hand, if the principal exercises or retains only the right to control the result of the work and not the manner or means by which it is to be accomplished, then the one performing the work is an independent contractor. See generally Hollingbery v. Dunn, 68 Wn.2d 75, 79–80, 411 P.2d 431 (1966); DeWolf & Allen, 16 Washington Practice, Tort Law and Practice § 4.12 (5th ed.).

The relationship of an independent contractor to the principal is not affected because the principal reserves the right to supervise the work merely to determine contract compliance. Epperly v. City of Seattle, 65 Wn.2d 777, 785, 399 P.2d 591 (1965).

For the factors or elements that should be taken into consideration in determining whether one is an agent (employee) or an independent contractor, see WPI 50.11.01 (Distinguishing Between Agents and Independent Contractors).

Many fact-specific exceptions exist to the rule exempting a contracting party for the negligence of an independent contractor. See DeWolf & Allen, 16 Washington Practice, Tort Law and Practice § 4.15 (5th ed.); Restatement (Second) of Torts § 409 cmt. b (1965); Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 330–34, 582 P.2d 500 (1978) (discussing three exceptions).

See the Comment to WPI 50.01 (Agent and Principal—Definition), for a discussion concerning when the question of an independent contractor relationship should go to the jury.

Worksite safety. The Washington Supreme Court found that a general contractor had a nondelegable duty to provide a safe workplace for all persons. Vargas v. Inland Wash. LLC, 194 Wn.2d 720, 731–34, 452 P.3d 1205 (2019); Thoen v. CDK Constr. Servs. Inc, 13 Wn.App. 2d 174, 466 P.3d 261 (2020). Because these cases involved specific facts, regulations, and legal issues, it is difficult at this time to develop pattern jury instructions or verdict forms on the topic of worksite safety. In addition, it may be that a trial court will resolve, as a matter of law, that a nondelegable duty exists with respect to worksite safety. In that situation, it is possible that the trial court will leave issues of breach of duty, proximate causation, and damages to the jury as a finder of fact. Obligations imposed by regulation should be addressed consistent with WPI Chapter 60 (Statutory Violations). Existing instructions on negligence, proximate cause, and damages will be applicable, along with Part V (Multiple Parties and Pleadings—Forms of Verdicts) and may be modified to reflect the parties and issues in a particular case.