Lawletter No. 48 Vol. 4
TORTS: Duty of Care by a Supplier of Tools or Chattels
Lee Dunham, Senior Attorney
It is, unfortunately, fairly common for people to sustain injuries from using defective tools or equipment such as ladders or scaffolding with faulty latching mechanisms or broken or improperly modified power tools. In circumstances where the tool was supplied by a third party, the party supplying the tool or chattel is often the employer of the injured worker, and the injury occurs on property owned or controlled by the employer. In such circumstances, the claim is often governed by OSHA regulations or principles of premises liability. However, even where those principles do not apply, liability can arise as a result of negligently supplying a defective chattel. The rule as stated in the Restatement (Second) of Torts § 392 is as follows:
Chattel Dangerous for Intended Use
One who supplies to another . . . a chattel to be used for the supplier's business purposes is subject to liability to those for whose use the chattel is supplied . . . for physical harm caused by the use of the chattel in the manner for which and by person for whose use the chattel is supplied (a) if the supplier fails to exercise reasonable care to make the chattel safe for the use for which it is supplied, or (b) if he fails to exercise reasonable care to discover its dangerous condition or character, and to inform those whom he should expect to use it.
Several cases, which are quite dated but remain good law, make it clear that a “master” is liable to her “servant” when he is injured by defective tools she provided. The law imposes upon a master “the primary duty to use ordinary care to furnish . . . its servant, with tools and appliances reasonably safe for his use in performing the work required of him.” E. Tenn. Tel. Co. v. Jeffries, 153 Ky. 133, 137, 154 S.W. 1112, 1113 (1913). In East Tennessee Telephone, the phone company “master” was held liable to its “servant” worker when he was injured by a defective ladder it had provided. Id. Similarly, in Nugent Sand Co. v. Howard, 227 Ky. 91, 11 S.W.2d 985, 987 (1928), the court found that the jury had been properly directed to find for the plaintiff if the defendant “master” had failed to exercise ordinary care in providing a reasonably safe ladder to the plaintiff “servant,” which failure had been shown by the proof to be the proximate cause of the plaintiff’s injury.
The plaintiff/servant has “no duty of inspection and he [is] not required to use ordinary care to ascertain whether the ladder furnished him by [the defendant/master] was reasonably safe for use. He ha[s] the right to presume, when the ladder was furnished him, that . . . it was reasonably safe for his use . . . unless it was, in fact, defective, and the defect was so obvious it must have been discovered by him.” Jeffries, 153 Ky. at 137, 154 S.W. at 1113. The “limit of inquiry” in such a case is whether the plaintiff actually knew that the implement was defective. Id. at 1113–14.
It has been held by this court in several cases of comparatively recent date that when a master employs a servant to work for him, he impliedly undertakes that the machinery and tools with which the servant is to work, as well as the place of work, are in a reasonably safe condition, and to keep them in such condition, and it is the duty of the servant to use ordinary care to avoid injury from the use of a defective tool or appliance, or from danger in the place of work, if the defect or danger is known to him, or so obvious that the performance of his duties would make it known to him; but no duty devolves upon him to make a critical examination of such tool, appliance, or place of work, and for injuries resulting from their dangerous or unsafe condition, of which he had no knowledge, he is entitled to recover against the master.
Hale's Adm’r v. Ill. Cent. R.R. Co., 160 Ky. 470, 472, 169 S.W. 877, 878 (1914).
Courts in a number of jurisdictions continue to apply the rule that a master is required to use ordinary care to provide tools that are in good condition and reasonably suited to the use for which they are intended. See Lakeshore Contracting, LLC v. Lopez-Hernandez, 351 Ga. App. 232, 235, 830 S.E.2d 561, 563 (2019); Graham v. GJS Props., LLC, No. CV186011651S, 2019 Conn. Super. LEXIS 2774, at *10 (Oct. 24, 2019).
East Tennessee Telephone, Nugent Sand, and Hale’s Adm’r used the terms “master/servant” and “employer/employee,” but the principle that a defendant who provides a plaintiff with defective tools to perform a specific job is liable for injuries sustained as a result applies whether the parties’ relationship was one of employer and employee, contractee and independent contractor, or some other relationship. See The Rheola, 19 F. 926, 927 (C.C.S.D.N.Y. 1884) (although parties did not have technical master/servant relationship, plaintiff was “performing a service in which the [defendants] had an interest, and which they contemplated would be performed by the use of appliances which they had agreed to provide,” and they were therefore under an implied duty to provide safe and suitable appliances); Hall v. Bates, 216 Mass. 140, 142, 103 N.E. 285, 285 (1913) (“Wherever the duty of providing appliances or materials to the injured workman is undertaken [the obligation to provide suitable tools] arises, even if no contractual relation exists between the parties.”); Connors v. King Line, 98 A.D. 261, 264, 90 N.Y.S. 652, 655 (1904) (“[W]here the defendant furnishes appliances to be used for a particular purpose with knowledge of such use, he is liable for a defect therein created by his own negligence or negligently permitted to exist where such negligence renders the appliance dangerous to life and limb of those who may use the same. Such liability exists independent of any privity of contract between the parties.”).
In short, regardless of the relationship between the parties or the location where the injury occurred, as long as the person using the tool or chattel is using it to aid the person who supplied it, the supplier has a duty to inspect the item for dangerous conditions and to make it safe or warn the user of defects.
