Gooseberry on Tortious Behavior

I woke up this morning at 5 am to do two things:

1. Buy Krispy Kreme donuts for all of the lobbyists attending the 2009 Wyoming Legislature; and

2. Attend a hearing on a bill that would make job site owners strictly liable for any accident caused by a contractor's employee.

The donuts were good (even though I didn't eat any, they were still warm when I delivered them in Cheyenne).

The hearing was a mess. The attorney speaking in favor of the bill, who we will call Rectum to protect the innnocent, was a prevaricator and general liar. When asked if the bill would apply to anyone but the oil and gas industry he said, "No. It will only apply to oil and gas, and then only to wrongful death situations."

I know how to write bills. If you want a bill that only applies to one class of people you: a.) place the statute in a section of law that only applies to that class of people, or you b.) say directly in the bill "it only applies to this specific class of people." Rectum's bill was written to be inserted in the general tort section of the Wyoming statutes and makes no mention of oil and gas or wrongful deaths.

Then Rectum went on to say the bill only codified existing Wyoming tort law. Unfortunately for Rectum, this explanation stinks just as bad as his previous explanation of to whom the bill may be applied.

Under current law, a job site owner is only liable for injuries 1.) when he acts in such a way as to take over the responsibilities for directing the work from the contractor, thereby standing in the place of the contractor; or 2.) when he fails to perform on a duty of care created by some statute, contract, lease, regulation, etc.

The bill drafted by Rectum creates a "nondelegable duty" that arises, not from a failure to perform on the duty of care, but from the underlying statute, contract, lease, regulation, etc. In this instance, nondelegable duty means a "vicarious liability," or in other words, it creates a strict liability for another person's actions (Strict liabiltiy means there is no finding of fault, or duty. Fault is assumed and created by the statute itself). So -- the new statute would mean anyone who hires a contractor and signs a contract would, without doing anything themselves, be at fault without any review for a total 100 percent cost of any injuries.

Rectum says the goal of the bill is to make things safer. Unfortunately, the way the bill is written it makes companies do things to absolve themselves of any duty of care. They no longer will do things that require safety from their contractors. It, therefore, shift sthe burden of responsibility for safety from the contractor (the person in the best position to make sure a work place is safe) to the job site owner and then incentivizes the job site owner to drop all contractors like a hot potato.

What job site owner would want to hire a contractor to do anything if it meant taking on that kind of liability? There is no existing insurance to cover that kind of liability.

So the bill, instead of making people safer, makes job site owners do things like not sign contracts, which means no safety clauses and no more contractors.

One wonders, therefore, why Rectum was making such a big stink.