Request By:
Mr. R. Michael Amyx
Executive Director
Kentucky Municipal League
Suite 201, Bradley Hall
University of Kentucky
Lexington, Kentucky 40506
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that a question regarding the potential liability of an electrical inspector and his employing city in carrying out normal electrical inspection duties has been presented to the Municipal League by a city attorney. You state that the city in question employs, by contractual agreement, a part-time electrical inspector to enforce the provisions of the municipal electrical code. The inspector receives a fee from each inspection that is paid directly to him by the consumer. The city does not pay the inspector any salary or fee for his services. The inspector and the city both have expressed concern as to whether either or both might be subject to liability for any alleged negligence on the part of the inspector in enforcing the electrical code provisions.
Although your inquiry is concerned with an electrical inspector who is enforcing a municipal electrical code, we would briefly direct your attention to several sections of KRS Chapter 227 which were amended by the 1978 session of the General Assembly. KRS 227.489 provides that the commissioner of housing, buildings and construction shall require electrical inspectors to be certified and it then sets forth the conditions to be satisfied concerning certification. KRS 227.450(4) defines in part an "electrical inspector" as any person certified pursuant to KRS 227.489, who for compensation inspects to ascertain compliance with the national electrical code incorporated in the uniform state building code promulgated pursuant to KRS 198B.050 or the standards of safety of the Commonwealth of Kentucky. A state building code has not yet been promulgated but KRS 227.320 now provides that the authorities of any city, county or other political subdivision shall adopt and enforce the standards of safety promulgated by the commissioner of housing, buildings and construction and those standards include an electrical code. See OAG 78-792, copy enclosed.
From the limited factual information available to us it would appear that the electrical inspector is an independent contractor rather than an employe of the city. On that assumption we direct your attention to 41 Am.Jur.2d, Independent Contractors, § 24:
"Although in some early cases it was thought that the doctrine of respondeat superior applied to the relation between an employer and an independent contractor, the authority of these few cases was soon, and has been since, overwhelmed by many decisions promulgating the general rule that an employer or contractee is not liable for the torts of an independent contractor or of the latter's servants committed in the performance of the contracted work. This rule of the nonliability of an employer is based upon the theory that the characteristic incident of the relation created by an independent contract is that the employer does not possess the power of controlling the person employed as to the details of the stipulated work, and it is, therefore, a necessary judicial consequence that the employer shall not be answerable for an injury resulting from the manner in which the details of the work are carried out by the independent contractor. "
In 57 Am.Jur.2d, Municipal, Etc., Tort Liability, § 92, the following appears:
"The general rule of nonliability for the acts of an independent contractor applies to a municipal corporation or state sued for injuries resulting from the negligence of a person performing services in its behalf under a contract which invests the contractor with general control over the work, where the work is not inherently dangerous or necessarily injurious."
In addition, in McQuillin Mun. Corp. (3rd Ed.), Vol. 18, § 53.75a, the author states the general rule is that the owner or employer is not answerable for the acts of an independent contractor and the rule is applicable to municipal corporations. Thus, the contractor is liable if negligence on his part is proved but the municipality is not unless the case comes within one of the numerous exceptions to the rule.
The general rule as expressed in the above-mentioned authorities is applicable in Kentucky. In Courtney v. Island Creek Coal Company, 474 F.2d 468 (6th Cir.1973), the Court said that it is settled in Kentucky that one who engaged an independent contractor is not legally responsible for the torts or negligence of such a contractor unless the work involves a special danger to others (a unisance or inherently dangerous) . See also King v. Shelby Rural Electric Cooperative Corp., Ky., 502 S.W.2d 659 (1973); City of Hazard Municipal Housing Commission v. Hinch, Ky., 411 S.W.2d 686 (1967); and City of Convington v. Parsons, 258 Ky. 22, 79 S.W.2d 353 (1935).
As indicated above, there are exceptions to the general rule and while not trying to list all of them we offer some examples. To relieve an owner from liability for the negligent acts of an independent contractor employed by him, he shall have exercised due care to secure a competent contractor for the work. An employer of an independent contractor may be liable where he has retained control of some part of the work or interfered with the performance of the job so as to have assumed control, and his failure to exercise that control with reasonable care causes harm to others. Where the employer furnishes to the independent contractor any of the instrumentalities to perform the work, the employer must exercise reasonable care with respect to such instrumentalities. The city may also incur liability where the work is inherently dangerous and where an unlawful act is carried out by the city. See 41 Am.Jur.2d, Independent Contracts, §§ 26, 29 and 30, and McQuillin Mun. Corp. (3rd Ed.), Vol. 18, § 53.76a, c, d.
Thus, if the relationship between the city and the electrical inspector creates a situation of employer and independent contractor, the employer (the city) as a general rule is not liable for the negligent acts of the independent contractor (electrical inspector) . The independent contractor is liable if negligence on his part is proved but the city will not be liable unless the case comes within one of the exceptions to the general rule, some of which have been mentioned above.
If the relationship between the city and the electrical inspector is in fact that of employer and employe, rather than employer and independent contractor, then both the city and the electrical inspector could be liable if the principles of liability and negligence established by the Supreme Court of Kentucky in Grogan v. Commonwealth, decision rendered January 16, 1979, presently pending before the Court on the appellants' petition for rehearing, and Frankfort Variety, Inc. v. City of Frankfort, Ky., 552 S.W.2d 653 (1977), and other cases cited in those decisions, as well as Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962), are applicable to the particular local situation.