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Here is an excerpt of the Legal Analysis for

PSI ENERGY, INC. V. ROBERTS

829 N.E.2d 943 (2005)

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LEGAL ANALYSIS: Careful. There is a lot going on in this case and most of it may not be used in the casebook you are using.

There are of course a number of sub rules in the case related to negligent hiring and whether the employee of the independent contractor can in fact sue the principal. Here the standard of duty for due precautions is created from industry standards and customs. Something is not intrinsically dangerous if due precautions can be taken.

The dissent gives you a more detailed view of the issue of abnormally dangerous as stated under the Restatements. However it confuses inability to eliminate a risk with the duty of due care. No risks can ever be eliminated. That is impossible. It doesn’t matter what kind of activity you engage in, there are always risks. Some risks are so extreme that they cannot be eliminated even with the exercise of due care. Here it is clear that the risks associated with asbestos can be so reduced that they fall out of the penumbra of strict liability and move into negligence. Further, we are more worried about the duty and standard of care adoption by this court than over the fight about intrinsically dangerous. We have never seen a court adopt an industry wide standard of care without careful examination of that standard to determine if it is in fact negligent itself. Here, the court simply adopts per se the industry standards of care under the due precaution issues.

Just do a full search of abnormally dangerous in Dean’s Law Dictionary.

To focus you on intrinsic dangerousness: The best-known applications of the Rylands rule imposing strict liability on a defendant involve the storing and use of explosives and flammable materials. See Continental Building Corp. v. Union Oil Co. (1987), 152 Ill. App. 3d 513, 515-16, 105 Ill. Dec. 502, 504 N.E.2d 787 (cases cited); Opal v. Material Service Corp. (1956), 9 Ill. App. 2d 433, 133 N.E.2d 733 (use of explosive such as dynamite in residential area was intrinsically dangerous and gave rise to strict liability for the blaster regardless of degree of care or skill exercised in using the explosive).Illinois has recognized strict liability principally in two instances: (1) when, under certain circumstances, a defendant introduces a product into the community which is unreasonably dangerous to the user, consumer, or to his property (product liability cases) (Martin v. Harrington & Richardson, Inc. (7th Cir. 1984), 743 F.2d 1200, 1202); and (2) when a defendant engages in ultrahazardous or abnormally dangerous activity as determined by the courts, giving particular consideration, inter alia, to the appropriateness of the activity to the place where it is maintained, in light of the character of the place and its surroundings (Continental, 152 Ill. App. 3d at 516-17). See Riordan v. International Armament Corp. (1985), 132 Ill. App. 3d 642, 87 Ill. Dec. 765, 477 N.E.2d 1293 (distinguishing product liability from ultrahazardous activity liability); see also Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. (N.D. Ill. 1981), 517 F. Supp. 314 (concluding that transporting acrylonitrile, a dangerous and toxic substance, was inherently dangerous or ultrahazardous activity so that complaint stated cause of action in strict liability under Illinois law). The question arises whether the use of firearms is an ultrahazardous activity giving rise to strict liability. (Fallon v. Indian Trail School, Addison Township School District No. 4 (1986), 148 Ill. App. 3d 931, 102 Ill. Dec. 479, 500 N.E.2d 101 (holding as a matter of law that use of trampoline is not abnormally dangerous instrumentality); Clark v. City of Chicago (1980), 88 Ill. App. 3d 760, 763-64, 43 Ill. Dec. 892, 410 N.E.2d 1025 (demolition held ultrahazardous as a matter of law).) Ordinarily the manufacture or the sale of nondefective handguns has been held not to be an ultrahazardous activity. (Riordan, 132 Ill. App. 3d at 649-50, citing with approval Martin v. Harrington & Richardson, Inc. (7th Cir. 1984), 743 F.2d 1200.)

An excerpt from Dean’s Law Dictionary on the Nondelegable duty doctrine.

An employer is generally not liable for the negligent acts of an independent contractor. There are, however, exceptions to this general rule, several of which stem from the nondelegable duty doctrine. Nondelegable duties arise in various situations that generally fall into two categories: (1) affirmative duties that are imposed on the employer by statute, contract, franchise, charter, or common law and (2) duties imposed on the employer that arise out of the work itself because its performance creates dangers to others, i.e., inherently dangerous work. Prosser & Keeton, The Law of Torts (5 Ed. 1984) 511-512, Section 71; Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 260-261, 553 N.E.2d 1038, 1047-1048. If the work to be performed fits into one of these two categories, the employer may delegate the work to an independent contractor, but he cannot delegate the duty. In other words, the employer is not insulated from liability if the independent contractor's negligence results in a breach of the duty. Work is inherently dangerous when it creates a peculiar risk of harm to others unless special precautions are taken. See Covington & Cincinnati Bridge Co. v. Steinbrock & Patrick (1899), 61 Ohio St. 215, 55 N.E. 618, paragraph one of the syllabus; 2 Restatement of the Law 2d, Torts, Section 427; Prosser & Keeton at 512-513, Section 71.

Under those circumstances, the employer hiring the independent contractor has a duty to see that the work is done with reasonable care and cannot, by hiring an independent contractor, insulate himself or herself from liability for injuries resulting to others from the negligence of the independent contractor or its employees. Covington at paragraph one of the syllabus. To fall within the inherently-dangerous-work exception, it is not necessary that the work be such that it cannot be done without a risk of harm to others, or even that it be such that it involves a high risk of such harm. It is sufficient that the work involves a risk, recognizable in advance, of physical harm to others, which is inherent in the work itself. 2 Restatement of the Law 2d, Torts, at 416, Section 427, Comment b. The exception does not apply, however, where the employer would reasonably have only a general anticipation of the possibility that the contractor may be negligent in some way and thereby cause harm to a third party. For example, one who hires a trucker to transport his goods should realize that if the truck is driven at an excessive speed, or with defective brakes, some harm to persons on the highway is likely to occur.

An employer of an independent contractor may assume that a careful contractor will take routine precautions against all of the ordinary and customary dangers that may arise in the course of the contemplated work. Id. at 385, Section 413, Comment b; Prosser & Keeton at 514-515, Section 71. The inherently-dangerous-work exception does apply, however, when special risks are associated with the work such that a reasonable man would recognize the necessity of taking special precautions. The work must create a risk that is not a normal, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity arising out of the particular situation created, and calling for special precautions. 2 Restatement of the Law 2d, Torts, at 385, Section 413, Comment b; Prosser & Keeton at 513-514, Section 71. Some courts state that the issue of whether an employer may be liable for the negligence of an independent contractor is not always determinable as a matter of law. Rather, the question "may be one of law, or of fact, or of mixed law and fact, depending upon the circumstances of the particular case." Warden v. Pennsylvania RR. Co. (1931), 123 Ohio St. 304, 307-308, 175 N.E. 207, 208. As the Warden court explained: "The circumstances surrounding the execution of a contract by an independent contractor might be such that it could properly be stated that, as a matter of law, there would be no liability on the part of the owner. On the other hand, the circumstances might be such as to make it very clear that the owner would carry a legal responsibility for the negligence of the contractor, to be determined by the court without submission to the jury. Between these two extremes, the circumstances may be so complicated that minds might easily differ as to the danger attendant upon the execution of the work, resulting in different conclusions as to the duty of the owner to exercise care to avoid injury to third persons." Id., 123 Ohio St. at 308, 175 N.E. at 208. 

If an independent contractor's work is "generically hazardous," such that the activity poses an inherent danger to others regardless of the skill with which the contractor performs the work, it is understandable how a court may find that the work falls within the inherently-dangerous-work exception as a matter of law. See Wilson v. Good Humor Corp. (C.A.D.C. 1985), 244 U.S. App. D.C. 298, 757 F.2d 1293, 1303-1304. Under the Restatement's "peculiar risk"/"special danger" doctrine, an activity may be fairly characterized as "inherently dangerous" even if it can be performed safely by taking proper precautions. See Huddleston v. Union Rural Elec. Assn. (Colo. 1992), 841 P.2d 282, 290; see, also, Scott Fetzer Co. v. Read (Tex.App. 1997), 945 S.W.2d 854, 861-862. Specifically, the exception applies "when an employer has reason to know that his independent contractor is likely, under particular circumstances, to endanger others absent reasonable precautions." (Emphasis sic.) Wilson, 757 F.2d at 1303. Thus, when the activity at issue is not "generically hazardous," the applicability of the exception "depends not only on the generic nature of an independent contractor's work but also on the fact-specific, particular circumstances under which any task is to be performed." Id. 757 F.2d at 1304.

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