Unfortunately, as is the case of many areas of subrogation, a carrier’s recovery rights and the respective liability of third parties involved in a subrogation action are almost always determined by the individual law of the state involved. The difficulty of subrogating under this exception is proof that the employer of the independent contractor actually gave instructions or orders, which were followed by the contractor, and which, in turn, resulted in the overspray. 1996) (woman injured when she leaned against building that had been cleaned with acid for about five minutes while watching the Macy’s Thanksgiving Parade). ... amount of paint overspray and overall amount of paint required. The first departure from the old common rule was Bower v. Peate, 1 Queen’s Bench Division 321 (1876), in which an employee was held liable when the foundation of the plaintiff’s building was undermined by the contractor’s excavation. Dramatically reduce VOC and HAPs emissions. The Tennessee Supreme Court has noted that a risk becomes unreasonable if the reasonably foreseeable probability and gravity of the harm far outweighs the burden upon the defendant to engage in alternative conduct that would have prevented the harm. Any painting contractor without sufficient insurance or assets to satisfy a large judgment should be made an ally, and can effectively be used to assist us in building a legal case against the owner. As with many other areas of the law, the answer to this question is highly dependent on the state in which you are subrogating. Please tell us what you liked about it. Clearly, the question here is whether or not commercial exterior painting operations carry with them a “peculiar unreasonable risk of physical damage”. Paint Pockets excels in arresting both liquid and powder coating overspray generated in industrial, automotive, and aerospace applications. Unfortunately, the general rule, and the principle which has plagued subrogation professionals handling paint overspray cases for decades, is that the employer of an independent contractor is not liable for paint overspray caused by the negligent acts of the contractor or its employees. The Tennessee Supreme Court has noted that a risk becomes unreasonable if the reasonably foreseeable probability and gravity of the harm far outweighs the burden upon the defendant to engage in alternative conduct that would have prevented the harm. The non-liability of an owner for overspray caused by the negligent actions of an independent contractor was actually the rule at common law. Co. v. Kenny Boiler & Mfg. The required supplies are: a clay bar and lubricant, which can be purchased from auto parts stores and auto supply sections in department stores, few soft towels, a spray bottle, and liquid wax, and a paint brush. An exculpatory clause in the contract may or may not relieve the owner from liability, depending on the state involved, but it certainly will play a role when determining the duty of care owed by the owner. Last year alone, they cleaned overspray contamination on over 15,000 cars that were oversprayed with polyurethane, paint, tar, asphalt, and concrete. 1966); Garczynski v. Darin & Armstrong, 420 F.2d 941 (6th Cir. This is often difficult to prove. Whether or not an owner who hires an independent contractor to conduct painting operations will be responsible for paint overspray damage caused by the negligence of the contractor will be largely dependent on the state in which you are subrogating. The Tennessee Court of Appeals notes that this exception to the common law rule of non-liability is not limited to work that is “abnormally dangerous” or that carries with it a high degree of risk of harm to others. Hiring a contractor without insurance may result in the contractor being uninsured, but it does not result in the damages which result from the contractor’s negligence. Airborne paint overspray results from all sorts of industrial, commercial, and private paint jobs, such as bridges, water towers, and other large and inconveniently located outdoor areas that need painting. 2. U.S. Department of Health and Human Services, Public Health Service, Center for Disease Control and Prevention. Overspray Professionals specialize in professional overspray removal services. The law even recognizes that paint overspray is a “relatively common occurrence.” Benesh v. New Era, Inc., 566 N.E.2d 779, 782 (Ill. App. An exculpatory clause in the contract may or may not relieve the owner from liability, depending on the state involved, but it certainly will play a role when determining the duty of care owed by the owner. Is paint waste a special waste? Rptr.2d 878 (Cal. Hiring a contractor without insurance may result in the contractor being uninsured, but it does not result in the damages which result from the contractor’s negligence. Whether or not an owner who hires an independent contractor to conduct painting operations will be responsible for paint overspray damage caused by the negligence of the contractor will be largely dependent on the state in which you are subrogating. Presumably, it would include parking lots in such public places. App. If a contract is involved, it is often beneficial to obtain the contract and look to see how specific the instructions are to the contractor. The difficulty with this exception is that the damage has to result from some quality in the contractor which made it negligent for the employer to entrust the work to him. Id. A “competent and careful contractor” is a contractor who possesses the knowledge, skill, experience and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating an unreasonable risk of injury to others, and who also possesses the personal characteristics which are equally necessary. Many standard professional-grade spray paints contain Volatile Organic Compounds (VOCs). 1991). If the party responsible for causing the overspray is the premise’s owner himself or an employee of the owner, our job is rather simple. To determine whether an activity is inherently dangerous, a court must ascertain the nature of the activity and the manner in which it is ordinarily performed. Waggoner Motors, Inc., supra. Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42 (Tenn. Ct. App. The insurance industry is left with three options to combat these claims: Exterior painting contractor underwriting usually provides coverage for exterior painting less than three stories and excludes bridges and overspray losses, with a $500 deductible on a “per claim” basis. 1999); Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. Paint Overspray Arrestor Purolator Products Air Filtration Co . As is true with most subrogation investigation, it is vitally important to obtain all of the relevant information, documents, and statements necessary to ascertain the facts on which the liability of the owner will hinge. If you’re careful and using the right paint sprayer, any overspray will land on the tarp and not your grass. The difficulty with this exception is that the damage has to result from some quality in the contractor which made it negligent for the employer to entrust the work to him. Rptr. App. The court noted that “it is common knowledge that spray paint is often carried by the wind and often splatters on surfaces where it is not wanted.”. 226 (1937) (stating that “indeed it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions”). Please tell us what we can do to improve this article. 52 (Cal. A Missouri Court of Appeals held that painting an enclosed interior stairwell was not an inherently dangerous activity sufficient to provide an exception to the general rule denying the owner’s liability for the negligence of its independent contractor. Van Arsdale v. Hollinger, 437 P.2d 508 (Cal. The kids have no insurance, bond or license so they are essentially judgement-proof. Take the Borello Test issued by California State Compensation Fund. 2003). Restatement (Second) of Torts § 411 (1965); Garguilo v. Moore, 242 A.2d 716 (Conn. 1968); Gomien v. Wear-Ever Aluminum, Inc., 276 N.E.2d 336 (Ill. 1971); Hercules Powder Co. v. Hicks, 453 S.W.2d 583 (Ky. 1970); Mills v. Angel, 995 S.W.2d 262 (Tex. If a contract is involved, it is often beneficial to obtain the contract and look to see how specific the instructions are to the contractor. Water Reclamation Some states have held that painting is not an inherently dangerous activity. Van Arsdale v. Hollinger, 437 P.2d 508 (Cal. In part, this is due to the overwhelming notion of the general common law rule pervading our legal society, which is that the owner is not responsible for the negligent acts of an independent contractor. Therefore, the employer is subject to liability under this exception for only the physical harm which was caused by the dangerous character of the work or the dangerous manner in which it is directed to be done. Beck v. Woodward Affiliates, 640 N.Y.S.2d 205 (N.Y.A.D. 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