Negligence of an Independent Contractor

Geoff Trachtenberg

Contributor

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Most attorneys hire outside companies to handle filing and serving lawsuits. What happens when these process servers mess up and, as a result, you cannot pursue your lawsuit?

We have a case like that right now. About one week before the statute of limitations ran, our client's former attorney prepared a lawsuit and sent it to be filed with the Court. Although the attorney's staff followed up on the filing and was even told that the complaint had in fact been filed, it had not and was ultimately filed two days after the statute of limitations had run. Worse still, the process server's company was uninsured.

It turns out that the attorney is probably on the hook. While employers are not typically liable for the negligence of independent contractors (as opposed to employees or agents), Arizona recognizes an exception called the "nondelegable duty exception." Under that rule, courts do hold the employer vicariously liable for acts of independent contractors where there is a "special relationship" between the employer and the person damaged by the negligence that results in a "higher duty." Typically, these kinds of special relationships are protective in nature and the attorney-client relationship seems to neatly fit the requirements.