The Inapplicability of the Inherently Dangerous Activity Doctrine to Employees of an Independent Contractor

An independent contractor, hired by the defendant power company, employed the plaintiff to construct and energize an electrical distribution system.The plaintiff was injured when fellow employees negligently energized a wire he was attempting to insulate.The Second District Court of Appeal reversed the decision of the trial court and found the defendant liable, though not negligent, on the basis that the activity was inherently dangerous and involved the use of electricity, a dangerous instrumentality.On certiorari to the Florida Supreme Court, held, reversed: a contractee, in the absence of negligence, is not liable to an employee of an independent contractor when the contract requires the performance of an inherently dangerous activity.Nor can liability to the employee be predicated upon the Florida dangerous instrumentality doctrine.*Florida Power & Light Co. v. Price, 170 So.2d 293 (Fla.1964).Early common law shielded the employer of an independent contractor from liability for the torts committed by the contractor.'Immunity from suit ran against third parties and the contractor's employees alike.By the mid-nineteenth century, case law accorded third persons a right of action against the employer, but only if the contract called for the performance of an unlawful act, 2 a nondelegable duty,' "or" 4 an inherently * It is interesting to initially note that the instant case is unique in that no other case has considered the contractee's liability under both of these legal theories.For a general discussion of the dangerous instrumentality doctrine as it existed at early common law, see Horack, The Dangerous Instrument Doctrine, 26 YArE L.J. 224 (1917).For a development of the doctrine in Florida law, see Comment, The Dangerous Instrumentality Doctrine: Unique Automobile Law In Florida, 5 U. FLA.L. REv.412 (1952).1. Early juristic opinion in England viewed the employer-independent contractor relationship as necessarily preclusive of any form of vicarious liability.The inability to control the performance of the work, which was the major criteria employed in classifying any particular employment situation as one of employer-independent contractor or master, gave rise to a policy "that it would be over-harsh to make men liable not only for acts which they cannot practically control in detail, but for the acts of persons over whom they have no control at all." POLLOCK, ESSAYS IN JURISPRUDENCE AND ETHICS 130 (1882).Thus, during the nineteenth century the limits of vicarious liability was generally confined to the masters of servants and partners.Williams, Liability for Independent Contractors, Carm.L.J. 180 (1956).2. The employer's legal responsibility was first established in that class of cases wherein the employment contract was for the performance of an unlawful act.Ellis v. Sheffield Gas Consumers Co., 2 El.& BI.767, 118 Eng.Rep. 955 (Q.B. 1853) and Hale v. Sittingbourne & Sheerness Ry., 6 H. & N. 488, 158 Eng.Rep. 201 (Ex.1861) are generally cited as the leading