Above, it has been established that the caterer was negligent, and thus, his negligence
may be attributed to the owner. The first important determination is whether or not the
caterer is an employee or an independent contractor. This is important because the
vicarious liability of the owner differs depending on this. Generally, to determine whether
someone is an employee or independent contractor, the courts look to several factors:
degree of skill required in the job, who provided the tools and facilities, duration of the
relationship, did principal control the means of performing the task, was there a distinct
business, etc. Applying those facts to this case, it would appear that the Caterer was
more likely an independent contractor. The reason being that the employment was only
for one day, it was because the owner's normal cook was out for the day, the owner did
not operate that much control over the caterer, the caterer had his own distinct
business, and the caterer brought his own knives. Thus, if the caterer is determined to
be an independent contractor of the owner, the owner generally is not liable unless one
of the two exceptions apply.
An owner is liable for the acts of his independent contractor in two situations: (i) when
the independent contractor is performing an inherently dangerous task and (ii) when
because of public policy, the principal's duties are non-delegable. The latter of the two
exceptions likely applies here. Public policy requires that an owner of an establishment
that invites and charges members of the public for certain services must reasonably
maintain their premises and ensure they are safe. Thus, just because the caterer was
an independent contractor, does not mean that the owner could delegate the duty to
maintain his restaurant and make it safe. Thus, the owner will likely be vicariously liable
for the negligence of the caterer.
It should be noted, that if for some reason the court finds that the caterer was actually
an employee of the owner because he was using the owner's kitchen and cooking the
owner's menu items, then the owner would also be liable because the negligence
occurred within the scope of his employment: it occurred while cooking on the job for a
patron of the restaurant.