Master and Servant - Independent Contractor - Inherent Danger Exception

Defendant was a home-owner whose home was fumigated by an independent contractor. Plaintiff was the administrator of the estate of a water softener service man, who entered the home and was overcome by the cyanide gas used in the operation. It was agreed by the parties that the contractor was negligent in failing to lock all entrances to the home, and in not posting warnings at all entrances. Plaintiffs request to charge the jury that the work was inherently dangerous was refused.

The court instructed the jury to determine whether or not the defendant had used due care in selecting a contractor, and, if he had, whether as a reasonable man he should have perceived unusual danger in the work if all due precautions were taken. The jury found for the defendant. On appeal, held, affirmed, two justices dissenting. Where due diligence has been exercised in selecting a competent contractor, and the thing contracted to be done is not in itself a nuisance, or will necessarily result in a nuisance if proper precautionary measures are used, the contractee is not liable.

Cary v. Thomas, (Mich. 1956) 76 N. W. (2d) 817.