13-1634. Strict liability for nondelegable duty.

            In this case ________________ (defendant) employed __________________ (independent contractor) to do work that was likely to create a substantial risk of physical harm to others. Therefore, ___________________ (defendant) is liable for any harm caused by the absence of reasonable precautions necessary to avoid the harm.

            In determining whether reasonable precautions necessary to avoid the harm were absent, you should decide what precautions would have been taken by a reasonably prudent person having full knowledge of the risk.

DIRECTIONS FOR USE

            This instruction should be given whenever the court determines that there is a nondelegable duty arising from employing an independent contractor to do work that is specially, peculiarly or inherently dangerous. Before the court gives this instruction, it must decide as a matter of law that the work that the employer engaged the independent contractor to perform was likely to create a peculiar risk of harm to others unless reasonable precautions were taken. If the court determines that the conduct is abnormally dangerous (ultrahazardous), UJI 13-1627 should be given and not this instruction.

COMMITTEE COMMENT

            The liability of one who employs an independent contractor for harm resulting from work which creates a peculiar risk of harm to others is direct liability for the absence of reasonable precautions and not vicarious liability for the negligence of the independent contractor. Saiz v. Belen School District, 113 N.M. 387, 827 P.2d 102 (1992). Under the strict liability theory recognized in Saiz, the questions for the jury are solely "(1) what precautions would be deemed reasonably necessary by one to whom knowledge of all the circumstances is attributed, and (2) whether the absence of a necessary precaution was a cause of injury." Id. at 396, 827 P.2d at 111. If reasonable precautions necessary to avoid the harm are not present, liability of the employer for harm caused is established, irrespective of the presence or absence of fault of the independent contractor.

            The inquiry whether the absence of reasonable precautions created a peculiar risk of harm is to be made by the trial judge as a matter of law and creates a duty of the employer, akin to the liability of a supplier of a product under strict liability, to take reasonably necessary precautions. Saiz, 113 N.M. at 399, 827 P.2d at 114 ("The doctrine with the proper fit is that of strict liability as developed in products liability cases."). As the Saiz Court stated: "The test of liability is the presence or absence of precautions that would be deemed reasonably necessary by one to whom knowledge of all the circumstances is attributed; and liability is dependent on neither the lack of care taken by the contractor nor the lack of care taken by the employer to ensure that the contractor takes necessary precautions." Id. at 395, 827 P.2d at 110. Liability under this theory of nondelegable duty should be distinguished from the liability of a landowner for abnormally dangerous activities (ultrahazardous), which is absolute as opposed to the strict liability here. Id. at 397, 827 P.2d at 112; see UJI 13-1627 NMRA.

            Under the strict liability claim, what is customarily done to protect against a peculiar risk of harm is evidence of the presence or absence of reasonable precaution; however, what should have been done by a person with full knowledge of the fact is a determination for the jury. The jury may be told the evidentiary value of customary precaution, similar to the instruction on the evidentiary value of custom in products liability actions. See UJI 13-408 NMRA.

            Where there is liability, the employer is jointly and severally liable with any other parties who "fail[ed] to take precautions reasonably necessary to prevent injury to third persons arising from the peculiar risk." Saiz, 113 N.M. at 400, 827 P.2d at 115.