Personal Injuries – Part 1

On Church Property or During Church Activities

Church Law and Tax 1990-01-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

Can a church and one of its trustees be legally liable for injuries sustained by an independent contractor hired to paint the church? No, concluded a Missouri state appeals court. A church trustee, acting on behalf of the church, contracted with a local painting company to paint the exterior of the church building. While painting a window frame at a height of 28 feet, a painter fell from a ladder and sustained serious injuries (resulting in quadriplegia). The injured painter sued the church and the trustee who signed the contract as well as the manufacturer of the ladder. A trial court dismissed the church and trustee from the lawsuit, and the painter appealed. A state appeals court also ruled in favor of the church and trustee. It began its opinion by observing that “generally, one who contracts with an independent contractor to perform work is not liable for bodily injury caused by the contractor or one of its employees” unless the work to be performed is “inherently dangerous” (in which case the one hiring the independent contractor must take adequate safety precautions). The court concluded that the act of painting the church was not “inherently dangerous,” and accordingly that the church had no legal duty to insure that adequate safety precautions were followed. The court also rejected the painter’s claim that the trustee was personally responsible for the injuries on the basis of the “negligent exercise of retained control” theory. This theory imposes liability on an employer who hires an independent contractor and retains control over any part of the work if the employer fails to exercise its control with reasonable care. The painter argued that the church trustee “retained control” over the painting contractor through painting specifications contained in the contract. This claim was also rejected by the court. It noted that the contract generally set forth a description of the work to be performed and the material to be used, and only mentioned the trustee twice (he was to be contacted if any surface could not be put in proper condition for painting through normal methods, and he was permitted to give the contractor instructions). “Clearly,” the court observed, “these two references do not give [the trustee] retained control …. [The control required to support liability] is over the methods of work or as to operative detail.” The court continued, “surely, one who employs an independent contractor may also employ a person to ascertain that the work is being done according to specifications and the employment of such person should in no way indicate that the independent contractor is being subjected to control.” This case is significant for a number of reasons. (1) It illustrates the fundamental legal principle that “with control comes accountability.” Stated another way, you ordinarily are legally responsible for the acts of injuries of those whom you control. It is important for churches to bear this principle in mind when they are engaged in building projects (and many other activities). Remember this—if you choose to reserve the authority to control a contractor you hire to perform work for the church, you likely will be responsible for the contractor’s actions and injuries. (2) It illustrates that you may be responsible for a contractor’s injuries incurred during the performance of an “inherently dangerous” activity. (3) It illustrates the potential personal liability a church board member incurs in signing a contract on behalf of a church—particularly when the signature does not indicate the church’s identity and the board member does not sign in a “representational capacity” (i.e., as a representative of the church). Barbera v. Brod-Dugan Co., 770 S.W.2d 318 (Mo. App. 1989).

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