• 2010 - Independent Contractor - Distinction
  • C-55.25
    • Agents And Agencies
    • Independent Contractors
    • Legal Entities
    • Legal Entities

  • Although both an employee and an independent contractor work for an employer, there is an important distinction between them. If the employer has the right to control, not merely the result, but the manner in which the work is done, as well as the method used, the person being controlled is an employee.

     

    On the other hand, an independent contractor is one who is allowed to perform without being subject to the employer’s supervision, orders, or control in respect to the details of the work. An independent contractor has absolute control of the work, as well as when and how it will be done and who may do it.

     

    [An employer is not responsible for the fault of an independent contractor.]

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    • Fettig v. Whitman, 285 NW2d 517, 520 (ND 1979), rev'd on other grounds, 373 NW2d 859, 867 (ND 1985)
    • Kristianson v. Flying J Oil & Gas, Inc., 553 NW2d 186 (ND 1996)
    • Madler v. McKenzie County, 467 NW2d 709 (ND 1991)
    • Zimprich v. Broekel, 519 NW2d 588 (ND 1994)
  • Notes: This instruction uses the term “employee” rather than “agent” because as noted in Mutual Life Ins. Co. of New York v. State, 298 NW 773, 776 (ND 1941), an independent contractor may in some instances be an agent. This instruction uses the popular term “employee” as a synonym for the legal term “servant.” See Kneeland v. Kneeland, 117 NW2d 207, 211 (Minn. 1962) (terms “employer” and “employee” are an outgrowth of and synonymous with terms “master” and “servant”). Black’s Law Dictionary at 1399 (8th ed. 1990) (term “servant” is in most cases synonymous with “employee”). Also, consistent with the Restatement, the instruction uses the term “employer” to describe the party hiring the independent contractor. See Restatement (Second) Law of Torts § 409 (1965) (“employer of an independent contractor is not liable for physical harm caused to another by the act or omission of an independent contractor or his servants”). There are occasions when an employer may be liable for the acts of an independent contractor or for the employer’s own conduct. See Fettig, 285 NW2d at 520; Kristianson, 553 NW2d at 188; Fleck v. ANG Gasification Co., 522 NW2d 445, 447 (ND 1994); Madler v. McKenzie County, 467 NW2d 709, 711 (ND 1991); Zimprich v. Broekel, 519 NW2d 588, 592 (ND 1994).