Wednesday, May 02, 2007, 7:05 AM

Split COA Panel Uses Non-Delegable Duty To Make Arguable Independent Contractor Agent

In a State v. Wilson, a split decision , the COA yesterday used the non-delegable duty theory not to hold the one out-sourcing the non-delegable duty liable, but to hold the person to whom the duty was out-sourced an agent and therefore liable under a criminal statute applicable only to agents and employees.

In Wilson, the defendant was a prison health care provider found guilty of committing sexual acts with an inmate. A statute the defendant was found to have violated applied to "a person . . . who is an agent or employee" of an institution having custody of the the victim of the sexual act. N.C. Gen. Stat. sec. 14-27.7. At trial, the defendant sought to introduce evidence that he was not an agent or employee of the sheriff's department that ran the prison but was instead an independent contractor. The trial excluded the evidence, and the COA upheld the ruling.

In upholding the exclusion of independent contractor evidence, the COA looked to the non-delegable duty doctrine. Under the non-delegable duty doctrine, certain duties, like access to medical care for prisoners or a safe workplace for employees, are considered so important that they are deemed non-delegable, and the employer or party with that non-delegable duty may not escape liability for failure to fulfill that duty by, for example, out-sourcing the duty to an independent contractor.

In Wilson, the COA used the non-delegable duty in reverse. The COA reasoned that if the defendant is considered an agent of the party with the non-delegable duty for purposes of holding the party with the non-delegable duty liable, then the defendant is also considered an agent of that party under Section 14-27.7, which applies to agents and employees.

Judge Wynn dissented. Judge Wynn noted that Wilson was not a case like the precedent the majority used in its reasoning, where the issue was whether the State could be absolved of liability for a non-delegable duty by out-sourcing to an independent contrator, but that this case presented a different question of whether an independent contractor may be deemed an agent of the State based on the State's non-delegable duty.

Judge Wynn said that the implications of the Wilson holding could be far-reaching. Indeed they could. For example, in the employment context, employers have a non-delegable duty to maintain a safe workplace for employees. If an employer outsources that non-delegable duty to an independent contractor, under the non-delegable duty doctrine, the employer remains on the hook for the independent contractor's failure to provide for workplace safety. Applying the logic of Wilson, the independent contractor would, however, be deemed an agent of the employer. And employer's agents are covered by the employer's workers' compensation exclusivity and not exposed to ordinary tort liability. Does the Wilson logic mean that such independent contractors are shielded from exposure and that workers' comp. insurers are covering different folks than they may realize?

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