Del. P.J.I. Civ. § 18.6A

INDEPENDENT CONTRACTOR WHO IS AN AGENT OF AN

OWNER/CONTRACTEE

Generally, an independent contractor is not considered the agent of an/a [owner

or contractee] who ordered the work performed. But if the [owner / contractee’s]

control or direction dominates the way that the work is performed, the independent

contractor becomes an agent of the [owner / contractee], making the [owner /

contractee] vicariously liable for the acts of the independent contractor.

You must determine whether [owner / contractee’s name]’s control over the

work dominated the manner in which it was performed by [independent

contractor’s name]. In this regard, some factors that you may consider include:

(1) the extent of control, which, by agreement, the [owner / contractee]

may exercise over the details of the work;

(2) whether the independent contractor maintains a business distinct from

the [owner / contractee];

(3) whether the details of the work are directly supervised by the [owner /

contractee] or performed by an independent specialist without supervision;

(4) whether the [owner / contractee] may hire or dismiss employees of

[independent contractor];

(5) whether, in the locale where the work was performed, it is customary

for the [owner / contractee] or for the independent contractor to supply the tools,

means, and place for doing the work;

(6) the length of time over which the work is done;

(7) whether the nature of the work is part of the regular business of the

[owner / contractee];

(8) whether the [owner / contractee] and independent contractor believe

they are acting as a principal and agent; that is, acting in a situation where the person

in the role of an agent acts for another, known as a principal, on the principal’s behalf

and subject to the principal’s control and consent; and

(9) whether the [owner / contractee] is or is not in business.

These are all factors that may determine whether the manner in which the work

was performed was dominated by the [owner / contractee] or by the independent

contractor. You must examine these factors and any others that you believe to be

relevant within the context that I have just supplied to you. No one factor is

determinative. It is the totality of the relationship that governs. You must then

decide whether [independent contractor’s name] was an agent of [owner /

contractee’s name].