If a sufficient record is established, the court will likely hold that maintenance of interstate highways is an inherently dangerous activity and a non-delegable duty, creating liability for employers who hire independent contractors to perform such tasks

Smyth was an automobile accident case in which the personal representative of the estate filed suit after the decedent was run off the highway into a mower tractor driving in the fast lane at night doing 30 miles per hour. The defendant's motion for summary judgment was granted, but the court reversed and remanded so the trial court could more fully develop the record to determine whether maintenance of interstate highways is considered an inherently dangerous activity and, thus, a non-delegable duty. The court indicated it was inclined to expand the inherently dangerous activity doctrine to include maintenance of the highways with a more developed record. This intention to expand the doctrine is important because it would create liability for an employer, even if an "independent contractor" was hired to do the work.

Case Law Alerts, 3rd Quarter 2013