What is in Spray Paint? An employer or owner may be liable if he fails to exercise reasonable care in employing a competent and careful contractor, provided: (1) the work will involve a risk of physical harm unless it is skillfully and carefully done; or (2) the contractor is employed to perform a duty which the employer owes the third persons. Things you need to do now! One possible, although less frequently used, exception to the general rule that an owner is not responsible for the negligent acts of an independent contractor, is where the owner employs an independent contractor to do work in a public place. Many standard professional-grade spray paints contain Volatile Organic Compounds (VOCs). The court determined that such influences do not transform “the basic nature” of the activity to one that is inherently dangerous. 1998); Ahl v. Stone Southwest, Inc., 666 So.2d 922 (Fla. App. Cincinnati, OH. Your insurance is going to go after the painter. ; Benesh, supra. This is often difficult to prove. Paint Pockets excels in arresting both liquid and powder coating overspray generated in industrial, automotive, and aerospace applications. Even if a painter does have paint overspray coverage, many insurance companies now include per claim deductibles above $500. 1997) (involving medical screening procedure); Levy v. Currier, 587 A.2d 205 (D.C. App. Overspray Removal Miami. Is painting so inherently dangerous that the owner should be responsible for the actions of the painting contractor where precautions are not required to be taken? My wife and I rent a parking space underneath an overhang that sits adjacent to the freshly painted fence. Subrogation for paint overspray claims under this exception will be limited to specific situations in which the overspray damages caused are in a public place, such as in a parking lot. If it was a neighbor business painting, then no, he's not going to be responsible for it. Eric’s final piece of advice to the contractor, “Don’t hesitate to call us the minute you hear that you are responsible for overspray damage. Associates, Inc., 960 P.2d 556 (Alaska 1998). Id. 1991). 1969); Widman v. Rossmoor Sanitation, Inc., 97 Cal. Hazardous components of paint spray include metals such as lead and chromium, polyisocyanates, and liquid organic solvents. Buy General Liability online by the day here, GHOST POLICIES AS LOW AS $650 CONTRACTORS WORKERS COMPENSATION. Once these affected employees get the idea that they have health issues from the overspray, you and your insurance company could be involved in a very serious and expensive propositon. An employer or owner may be liable if he fails to exercise reasonable care in employing a competent and careful contractor, provided: (1) the work will involve a risk of physical harm unless it is skillfully and carefully done; or (2) the contractor is employed to perform a duty which the employer owes the third persons. 1969); Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002); Hayes v. A.J. New Mexico has recognized that the installation of high-voltage lighting systems does involve such a risk, and the owner will be responsible for the negligent acts of its independent contractor under such circumstances. A New York court held that use of acid to clean the side of a building is an inherently dangerous activity which would expose the owner to liability under this exception. This presents a dilemma for the subrogating carrier, who can easily subrogate the negligent painting contractor, but without insurance, rarely see a recovery. National Institute for Occupational Safety and Health, DHHS (NIOSH) Publication 96-106 Van Arsdale v. Hollinger, 437 P.2d 508 (Cal. 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. Restatement (Second) of Torts § 411 (1965), cmt. 2001). One possible, although less frequently used, exception to the general rule that an owner is not responsible for the negligent acts of an independent contractor, is where the owner employs an independent contractor to do work in a public place. 1991) (use of acetylene torch to cut fire escape is inherently dangerous). Your email address will not be published. So recently the apartment complex I live in decided to paint the fence bordering the property. As with many other areas of the law, the answer to this question is highly dependent on the state in which you are subrogating. 2002. 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. The Procedure . “Public place” means a place which a state or any of its subdivisions maintain for the use of the public and includes not only public highways, but parks, public buildings and other similar places. Restatement (Second) of Torts § 409 (1965); Peter v. Public Constructors, Inc., 368 F.2d 111 (3rd Cir. Restatement (Second) of Torts § 410 (1965); German v. Mountain States Telephone, 462 P.2d 108 (Ariz. App. Nationwide knows how to clean overspray. This is often difficult to prove. Paint overspray is an inherent risk for any painting contractor, and even the most careful painting contractor can cause overspray damage. Examples of paint waste: Unused house paint (spray and can); Overspray from a painting operation; and; Overspray from an automotive spray booth. 1999); Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 52 (Cal. Notify me of follow-up comments by email. 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. If the owner instructed the employee to paint a tower or the outside of a building, and a negligent overspray results, the owner will be found liable. Rptr. Our job as subrogation professionals is to carve out further exceptions to that general rule. 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. I guess it's already over 20 years old, so it's completely hardened. 1966); Garczynski v. Darin & Armstrong, 420 F.2d 941 (6th Cir. Water Reclamation Also, those entities responsible for the overspray can save a tremendous amount of costs by eliminating the cost of rental cars for claimants. Frequently, they are no better off than if they had no insurance at all, and the result is that many of them don’t. In fact, these exceptions are now so numerous, and have eroded the general rule so much, that the general rule is now said to be applied only where there is “no good reason from departing from it.” Pacific Fire Ins. 1999); Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. Co. v. Kenny Boiler & Mfg. Restatement (Second) of Torts § 413 (1965); Mueller v. Luther, 142 N.W.2d 848 (Wis. 1966). Recently a company bought a lot at the end of our paint shed and built a parking lot there. Other states, although not specifically addressing this area of law with respect to paint overspray, have indicated that this particular exception to the general rule of non-liability of an owner hiring an independent contractor will apply in situations involving potential for physical harm which is much less significant than what otherwise might be expected. 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. Posted April 24, 2013 by sentryair. 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. 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. Again, the answer depends on the state in which you are subrogating, and it is important for subrogation professionals to remove their myopic defense-mentality glasses in order to see the potential for liability of an owner under these circumstances. Overspray Removal Specialists, Inc. is the nation’s largest full service paint overspray and hail claims management company that works with insurance companies, self-insured entities, and contractors all over the country, reducing the liability exposure and damage associated with vehicle overspray … 52 (Cal. This area also represents the most common exception to the general rule that the owner will not be responsible for the negligent acts of an independent painting contractor. 3M make overspray protective sheeting in a variety of sizes to protect various types of vehicles, including cars, vans, sport utility vehicles and trucks. 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. General Contractors, Inc., 600 N.W.2d 348 (Mich. App. Rptr.3d 87 (Cal. Whoever did the painting, it should be covered under their liability policy. Overspray Professionals specialize in professional overspray removal services. Results will vary from state to state, but there is an amazing absence of case law involving this area of the law as it relates to overspray damage. Three conditions of employee vs. independent contractors, New Regulations Regarding Covid 19 Employer requirements have gone into effect for California, Make sure your business property is covered properly, Is your Independent Contractor REALLY not an employee? Everyone knows that the inhalation of spray paint fumes has negative effects on your health, but just how hazardous are they? Bowles v. Weld Tire & Wheel, Inc., 41 S.W.3d 18 (Mo. Water wash filtration systems require a higher initial investment than dry filtration, but are ideal for operations that need uniform and consistent airflow. For many years, there was no exception and the owner simply could not be held liable for the actions of an independent contractor who was not his employee. 1999); Toland v. Sunland Housing Group, Inc., 74 Cal. It doesn't matter if he puts a claim in or not, they'll take the painter to court & get the judgement. Bowles v. Weld Tire & Wheel, Inc., 41 S.W.3d 18 (Mo. Your liability exposure is more than the damage caused to the vehicles as it could be causing health issues. Likewise, Tennessee recognizes that overspray is a well-known risk inherent in spray painting. 1971); Horn v. State, 297 N.Y.S.2d 795 (N.Y. Sup. 3M® Overspray Protective Sheeting is a paintable, high density and tear-resistant translucent film for critical edge masking as well as for paint overspray. Gonzalez v. United States Steel, 374 A.2d 1334 (Pa. Super. 1999); Toland v. Sunland Housing Group, Inc., 74 Cal. Learn how your comment data is processed. Again, the answer depends on the state in which you are subrogating, and it is important for subrogation professionals to remove their myopic defense-mentality glasses in order to see the potential for liability of an owner under these circumstances. Restatement (Second) of Torts § 410 (1965); German v. Mountain States Telephone, 462 P.2d 108 (Ariz. App. The kids have no insurance, bond or license so they are essentially judgement-proof. The Hazards of Spray Paint Fumes. Recirculation Paint Spray Booths A Review of Applicable Codes and Standards John B. Holecek, P.E., ... emerged that must be integrated in a responsible manner. Thank you! 1969); Widman v. Rossmoor Sanitation, Inc., 97 Cal. ; Benesh, supra. 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. Subrogation for paint overspray claims under this exception will be limited to specific situations in which the overspray damages caused are in a public place, such as in a parking lot. Kentucky has defined spray painting as a “comparatively passive activity”, and has held that an owner cannot be responsible for overspray damage caused by an independent contractor it has hired to do the painting, because it does not consider painting to be “inherently dangerous.” Miles Farm Supply v. Ellis, 878 S.W.2d 803 (Ky. App. In fact, these exceptions are now so numerous, and have eroded the general rule so much, that the general rule is now said to be applied only where there is “no good reason from departing from it.” Pacific Fire Ins. If the loss is large enough, and cooperation is not being had from the various parties involved, it is often prudent to get subrogation counsel involved, even at the investigative stage. 1. Benesh v. New Era, Inc., supra; Restatement (Second) of Torts § 427 (1965). Is paint waste a special waste? Nonetheless, painting contractors play the odds every day, as even conscientious and prudent painting contractors will face occasional overspray situations. U.S. Department of Health and Human Services, Public Health Service, Center for Disease Control and Prevention. excluding paint overspray as a covered loss. Last year alone, they cleaned overspray contamination on over 15,000 cars that were oversprayed with polyurethane, paint, tar, asphalt, and concrete. Other states, although not specifically addressing this area of law with respect to paint overspray, have indicated that this particular exception to the general rule of non-liability of an owner hiring an independent contractor will apply in situations involving potential for physical harm which is much less significant than what otherwise might be expected. Thank you! 1. 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. A New York court held that use of acid to clean the side of a building is an inherently dangerous activity which would expose the owner to liability under this exception. Co., 277 N.W. Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42 (Tenn. Ct. App. Kentucky has defined spray painting as a “comparatively passive activity”, and has held that an owner cannot be responsible for overspray damage caused by an independent contractor it has hired to do the painting, because it does not consider painting to be “inherently dangerous.” 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. Therefore, we find an insufficient number of cases dealing with the question of whether or not the employer may be responsible to a third person for failure to employ a contractor who is financially responsible and covered by liability insurance. Paint overspray is collected and trapped in the water curtain or scrubber section of the washer and then is dropped down into a collection tank. Burroughs v. Magee, 118 S.W.3d 323 (Tenn. 2003); McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995). The same is true in Illinois, where the Illinois Court of Appeals has held that hiring a painting contractor is sufficient to fall within the rule that one who employs an independent contractor to do work involving a special danger to others which the owner knows or has reason to know to be inherent in the work, is liable for damage which results from painting overspray. % of people found this article valuable. (d), illus. Burroughs v. Magee, 118 S.W.3d 323 (Tenn. 2003); McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995). The Year Ahead: Granular Data Bringing Claims Into Sharper Focus, Where’s the Paint? Gordon v. Ponderosa, Inc., 191 WL 70114 (Ohio App. ... amount of paint overspray and overall amount of paint required. Overspray Protective Sheeting by 3M®. Restatement (Second) of Torts § 417 (1965). A classic example would be an employer who tells the contractor to continue with spraying activity in high winds, after the contractor warns the employer that it would probably be safer to wait for a calmer day. The paints we used for those things weren't the 2 part automotive paint, but were mostly high solid paints with great scratch and chemical resistance. Benesh v. New Era, Inc., supra; Restatement (Second) of Torts § 427 (1965). For bigger projects, put down plenty of large tarps and use adhesive tape to cover up every nearby area you don’t want to get paint on. Id. 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. Therefore, Tennessee holds that the owner which has hired a painting contractor is liable for damage resulting from overspray. Quite frequently, the subrogating carrier can candidly interview the contractor, and tactfully explain that he may be facing liability alone unless he cooperates. 2001). The premise behind this exception is that the employer was negligent in directing the contractor to do work which is dangerous in itself or in the manner in which it is done. When painting the siding around your windows, it’s very common to get some overspray or paint drips onto the exterior of the windows. If the contractor is not able to deviate from the details of the contract, the owner may be liable if the manner specified in the contract approximately caused the damage. They were advised against this by us in the beginning. Therefore, Tennessee holds that the owner which has hired a painting contractor is liable for damage resulting from overspray. The same is true in Illinois, where the Illinois Court of Appeals has held that hiring a painting contractor is sufficient to fall within the rule that one who employs an independent contractor to do work involving a special danger to others which the owner knows or has reason to know to be inherent in the work, is liable for damage which results from painting overspray. For example, if A employs B, an independent contractor, to paint the wall of his building above the public sidewalk, and B’s employee drops his paint bucket which falls on C, the danger of dropping the paint bucket is inherent in the work and will be subject to liability to C. Restatement (Second) of Torts § 427 (1965), cmt. Experience has shown that nine out of ten painting contractors do not carry the requisite liability insurance to cover damages from paint overspray, if they have insurance at all. Id. Rptr.2d 878 (Cal. 1997) (involving medical screening procedure); Levy v. Currier, 587 A.2d 205 (D.C. App. 2003). 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). He is the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation and motivational topics, Your email address will not be published. (a). 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”). 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. Paint Overspray — Removal is a Problem, but Profitable By Sharie Sipowicz. If the owner instructed the employee to paint a tower or the outside of a building, and a negligent overspray results, the owner will be found liable. 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. For many years, there was no exception and the owner simply could not be held liable for the actions of an independent contractor who was not his employee. Rptr.2d 878 (Cal. Therefore, we have to be diligent and aggressive in both building and pursuing our subrogation rights in all claims involving paint overspray. Please tell us what you liked about it. 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. 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.”. App. However, more often, painting is done by an independent contractor – a painting professional hired by the owner to perform the work of painting an exterior structure. When you add this damage to other sources of overspray, such as wet road striping, industrial fallout, petrochemicals, emissions and flares, the toll on insurance companies reaches epidemic proportions. In most cases, a vehicle’s paint overspray can be removed and it can be detailed, before its owner leaves work that same day, by a mobile paint overspray removal company, such as ours. (Noting that paint overspray is a relatively common occurrence). The court in that case took the extreme position that if something can be done without probable injury, it is not “inherently dangerous.” They rejected the argument that an activity such as spray painting can become inherently dangerous if preformed under certain circumstances, including the location of the work, time of day, wind conditions, etc. Associates, Inc., 960 P.2d 556 (Alaska 1998). App. The owner will be responsible for the actions of his employee which were done in the course and scope of his employment. (Noting that paint overspray is a relatively common occurrence). For detailers, paint-overspray removal can be a big problem — it can also mean big profits. Take the Borello Test issued by California State Compensation Fund. 1977), aff’d 398 A.2d 1378 (Pa. 1979). Required fields are marked *. A Wisconsin Supreme Court determined that hauling corn silage did not create an unreasonable risk of harm, and therefore, an owner hiring an independent contractor to haul the corn silage was not liable for the actions of its independent contractor. Painting overspray is almost unavoidable – understanding your subrogation rights and taking effective and prompt action toward enforcing those rights is not. Likewise, Tennessee recognizes that overspray is a well-known risk inherent in spray painting. Therefore, we have to be diligent and aggressive in both building and pursuing our subrogation rights in all claims involving paint overspray. Auto Detail Doctor provides an example of a way to remove paint overspray from a car. We have updated our privacy policy to be more clear and meet the new requirements of the GDPR. 1991). 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