Casting our nets to catch as many liability defendants increases the potential amount of liability coverage available to our clients. Naming all potentially liable defendants also protects our clients from an identified defendant blaming someone who was not named a defendant in the case. When evaluating premises liability cases, many of us may overlook potential defendants. Although the duties of a property owner cannot be delegated, do not think that the responsibility lies solely with him.
What is the general duty of the property owner?
Virginia law requires property owners to maintain reasonably secure premises for visiting guests. While a property owner is not an insurer of the guest’s safety on the premises, he must take the usual care to make it reasonably secure for the guest’s visit. knight v. Moore, 179 Virginia. 139, 145, 18 SE2d 266, 269 (1942) (citing cases). In addition, while a property owner “must give notice or warning of an unsafe condition of which he is aware and the guest is unaware, such notice is not required when the unsafe condition is overt and obvious, and evident to a reasonable person exercising ordinary care of his own safety.” Id. at 146, 18 SE2d at 269 (citing Eastern Shore of Va. Agric. Ass’n v. LeCato, 151 Va. 614, 619-20, 144 SE 713, 714 (1928) In addition, a guest also “has the right to assume that the premises are reasonably safe for their visit” and “[i]n the absence of knowledge or warning of the hazard, … alertness is not required.” Id. at 146, 18 SE2d at 270 (citing cases). Fultz v. Delhaize America, Inc., et al., 278 Va. 84, 677 Se2d 272 (2009) See also Virginia Model Jury Instruction 23.040.
A landlord has a duty to take ordinary care to keep common areas in a reasonably safe condition and to use ordinary care to remove snow or ice from outdoor driveways under his control within a reasonable time after the snow stops falling. artrip v. Team EEBerry. Co., 240 Va. 354, 397 SE2d 821 (1990). See also Virginia Model Jury Instructions 24.010 and 24.030. A landlord who agrees to make such repairs has a duty to use ordinary care in making them, whether or not the repairs are made voluntarily. Oliver v. Cashin, 192 Va. 540, 65 SE2d 571 (1951). See also Virginia Model Jury Instruction 24.020.
An owner may not delegate any of the above duties to an independent contractor. The Virginia Supreme Court held in Love v. Schmidt, that if the obligation to maintain a premises in a safe condition is imposed by contract or by law, it cannot be delegated to an independent contractor. love v. Schmidt, 239 Va. 357 (1990). In Love, the owner (Schmidt) claimed that he was not responsible for the unsafe condition of a toilet seat in his building because he had delegated that duty to Slater, an independent contractor. Love did not name Slater in his claim for damages. Schmidt tried to avoid any responsibility by blaming Slater. The Court said that Schmidt could not avoid responsibility. Because Slater was not a party to the action, the Court had no reason to address the liability of the independent contractor.
What is the general duty of the independent contractor?
In Kesler v. Allen, the Virginia Supreme Court held that an owner who employs an indep. The contractor is not responsible for damages to third parties caused by the contractor’s negligence. Kesler v. Allen, 233 Virginia. 130 (1987). In Kesler, both the landowner and the indep. They were sued contractors. The landowner had hired the indep. contractor to repair a door that was on common property. The independent contractor negligently performed the repair and the plaintiff was injured. According to Kesler, a homeowner cannot be held liable for the negligence of an independent contractor unless there are certain exceptions.
Can the property owner be held responsible for the acts of the independent contractor?
Kesler and Love seem incompatible. In one the landlord is not responsible; in the other, the independent contractor is not responsible; however, Court in Love made a distinction between the two cases. The Court stated that the negligent act in Kesler did not arise from the landlord’s duty to provide a safe premises, but from the indep. contractor’s negligence in performing a discreet act. The landlord did not delegate to the independent contractor his duty to maintain the common areas in a safe condition; he simply hired the contractor to repair a door in the common area, an isolated and discreet act. For this reason, the Love Court concluded, Kesler did not apply to his deeds. At Love, the independent contractor handled all facility maintenance. That is the duty that an owner cannot delegate.
Love and Kesler, when read together, are compatible. A landlord cannot absolve himself of responsibility by delegating his duty to an indep. contractor; however, that independent contractor will be liable for his own negligence in performing discreet and isolated work.
That reasoning was followed by the Supreme Court in Southern Floors v. Max Yeboa. Southern Floors and Acoustics, Inc. c. Max-Yeboah, Lion of Food c. Max-Yeboah, 267 Virginia. 682 (2004). In Southern Floors, the Court repeated the general rule that a homeowner who employs an independent contractor is not liable for third-party damages caused by the contractor’s negligence. The Court in Southern Floors further commented on the difference between an injury arising from the performance of the owner’s duty to provide a safe premises and an injury arising from the negligence of an independent contractor. The Court differentiated the facts of Love and Kesler. At Love, the independent contractor was responsible for the daily maintenance, service and upkeep of the building. At Kesler, the independent contractor took on a discreet and isolated service: replacing a door. Although Love’s owner could not delegate the day-to-day maintenance and upkeep of the building to an independent contractor, Kesler’s independent contractor could be held liable for negligence by performing an inconspicuous act. Thus, the Supreme Court in Southern Floors created a distinction between the duty to keep property in a safe condition and the duty of care required when hiring someone to make a repair or improvement.
In Boland v. Rivanna Partners and Johnson Backhoe Loader, 69 Va. 308 (2005), the court ruled that the property owner, Rivanna, had a duty to maintain her premises in a safe condition imposed by both common law and a Charlottesville ordinance regarding ice and snow removal. Rivanna attempted to absolve herself of responsibility by delegating this duty to an independent contractor. The independent contractor attempted to avoid liability by citing Love’s premise that a legal duty cannot be delegated.
The clear instruction in these cases is that the property owner can be held liable for the acts of the independent contractor when the independent contractor is performing a non-delegable duty of the property owner. See Gazo v. Stamford, 255 Connecticut. 245, 765 A.2d 505 (2001) (stating that a “party may contract for the performance of a non-delegable duty, but may not contract for its final legal responsibility”).
Can the independent contractor be held liable when the property owner’s duty was “non-delegable”?
A determination that an independent contractor was hired to perform a property owner’s non-delegable duty to maintain a safe premises does not mean that the independent contractor gets a free pass. The cases discussed above address whether a property owner is liable for acts that could be attributed to an independent contractor, not whether the independent contractor has a duty of care to an injured guest. In Artrip, supra, the plaintiff was injured when he slipped and fell on a snowdrift and sued the snow removal company. The court did not need to decide the question of whether the defendant owed the owner of the Artrip property a duty of care because the parties had agreed that it did. The court explicitly stated: “In the present case, the parties agree that Berry owed Artrip a duty of reasonable care in removing snow from the parking lot, and we agree.” Although this statement is a dictum, it indicates the court’s agreement with the fundamental principle stated.
In fact, independent contractors retain an independent duty to exercise reasonable care when the act for which they have been hired benefits not only the property owner but also others. As judge Cardozo affirmed, “it is an ancient wisdom that whoever assumes to act, even if it is gratuitously, can therefore be subject to the duty to act prudently, if he acts.” Glanzerv. Shepard, 233 NY 236, 135 NE 275, 276 (NY 1922). This duty is separate from any contractual duty owed to the property owner. An independent contractor who provides a service that clearly affects the safety of others retains his own duty to care for anyone who could foreseeably be affected by the negligent performance of that service. The Restatement (Second) of Torts establishes: “In general, when a person undertakes to provide services to another, which he must recognize as necessary for the protection of a third person, he is subject to liability towards the third person for physical damage resulting of your failure to use reasonable care to protect your commitment.Restatement (Second) of Torts 234(A).
Injured guests are therefore not caught in a Catch-22 between homeowners and independent contractors. In Boland, the Johnson Defendants were not contracted to perform daily maintenance and servicing of the property; they were not contracted to maintain the facility in a safe condition. They were hired to do a discreet and isolated service, namely clearing a parking lot of snow and ice. Although the case was ultimately settled, the Court ruled in this reported decision that the Johnson Defendants could be held liable if they are found to have performed the task negligently. The Johnsons’ alleged negligence was such that, in the natural course of events, injury would result unless special precautions were taken.
An independent contractor may be held liable to a guest for the reasonably foreseeable consequences of their negligent performance of a service, although the owner may not delegate ultimate duty to maintain a safe premises.
What does this mean for your cases?
An independent contractor may be just as liable for his client’s injuries as the owner. The additional pot of insurance can be helpful in obtaining a full and fair settlement for your client. Be sure to name both as defendants in any lawsuit, and fight hard to maintain the contractor’s independence in the case. If the contractor does not stay in the case, the owner can argue against the contractor before the jury. You don’t want this situation, you want them both sitting in front of the jury.