Casting our nets to catch the largest number of defendants with liability increases the potential amount of liability coverage available to our clients. Naming all defendants with potential liability also protects our clients from having a named defendant blame someone who was not named a defendant in the case. When evaluating premises liability cases, many of us may overlook potential defendants. Even though a property owner’s duties are non-delegable, don’t think that the buck stops solely with him.
What is the general duty of the property owner?
Virginia law requires owners to maintain reasonably safe premises for their invitees’ visits. Although a property owner is not an insurer of the invitee’s safety on the premises, he must use ordinary care to render them reasonably safe for the invitee’s visit. Knight v. Moore, 179 Va. 139, 145, 18 S.E.2d 266, 269 (1942)(citing cases). Further, while a property owner “must give notice or warning of an unsafe condition which is known to him and is unknown to the invitee, such notice is not required where the dangerous condition is open and obvious, and is patent to a reasonable person exercising ordinary care for his own safety.” Id. at 146, 18 S.E.2d at 269 (citing Eastern Shore of Va. Agric. Ass’n v. LeCato, 151 Va. 614, 619-20, 144 S.E. 713, 714 (1928)). In addition, an invitee also “has the right to assume that the premises are reasonably safe for his visit,” and “[i]n the absence of knowledge or warning of danger,… is not required to be on the lookout for it.” Id. at 146, 18 S.E.2d at 270 (citing cases). Fultz v. Delhaize America, Inc., et al., 278 Va. 84, 677 S.e.2d 272 (2009). See also Virginia Model Jury Instruction 23.040.
A landlord has a duty to take ordinary care to keep common areas in reasonably safe condition and to use ordinary care to remove snow or ice from outdoor entrance walks under his control within a reasonable time after the snow stops falling. Artrip v. E.E.Berry Equip. Co., 240 Va. 354, 397 S.E.2d 821 (1990). See also Virginia Model Jury Instructions 24.010 and 24.030. A landlord who undertakes to make such repairs has a duty to use ordinary care in making them, whether the repairs are made voluntarily or not. Oliver v. Cashin, 192 Va. 540, 65 S.E.2d 571 (1951). See also Virginia Model Jury Instruction 24.020.
A landowner may not delegate any of the duties named above to an independent contractor. The Virginia Supreme Court held in Love v. Schmidt, that if a duty 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 landowner (Schmidt) claimed 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 her suit for damages. Schmidt attempted to avoid all liability by laying the blame with Slater. The Court said that Schmidt could not avoid liability. Because Slater was not a party to the action, the Court had no reason to address the independent contractor’s liability.
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. contractor is not liable for injuries to third persons caused by the contractor’s negligence. Kesler v. Allen, 233 Va. 130 (1987). In Kesler, both the landowner and the indep. contractor were sued. The landowner had hired the indep. contractor to repair a door that was on common property. The independent contractor negligently performed the repair and Plaintiff was injured. According to Kesler, a landowner cannot be held liable for the negligence of an independent contractor unless certain exceptions exist.
Can the property owner be held liable for the acts of the independent contractor?
Kesler and Love seem incompatible. In one the landlord is not liable; in the other the independent contractor is not liable; however, the Court in Love drew a distinction between the two cases. The Court stated that the negligent act in Kesler did not arise out of the discharge of the landlord’s duty to provide a safe premises, but upon the indep. contractor’s negligence in performing a discrete act. The landlord did not delegate to the independent contractor his duty to maintain the common areas in a safe condition; he merely hired the contractor the repair a door in the common area – an isolated and discrete act. For this reason, the Love Court concluded, Kesler did not apply to its facts. In Love, the independent contractor was charged with all of the maintenance of the premises. That is the duty that a landlord cannot delegate.
Love and Kesler, when read together, are compatible. A landlord cannot absolve himself of liability by delegating his duty to an indep. contractor; however, that independent contractor will be held accountable for his own negligence in performing a discrete and isolated job.
That reasoning was followed by the Supreme Court in Southern Floors v. Max-Yeboah. Southern Floors and Accoustics, Inc. v. Max-Yeboah, Food Lion v. Max-Yeboah, 267 Va. 682 (2004). In Southern Floors the Court repeated the general rule that an owner who employs an independent contractor is not liable for injuries to third persons caused by the contractor’s negligence. The Court in Southern Floors further commented on the difference between an injury arising out of the discharge of a landowner’s duty to provide a safe premises and an injury arising out of an independent contractor’s negligence. The Court differentiated the facts of Love and Kesler. In Love, the independent contractor was charged with the everyday maintenance, service, and upkeep of the building. In Kesler, the independent contractor was charged with a discrete and isolated service – replacing a door. Although the landowner in Love could not delegate the everyday maintenance and upkeep of the building to an independent contractor, the independent contractor in Kesler could be held liable for negligence in performing a discrete act. Thus, the Supreme Court in Southern Floors created a distinction between the duty to maintain the property in a safe condition and the duty of care required when one is hired to make a repair or improvement.
In Boland v. Rivanna Partners and Johnson Backhoe, 69 Va. 308 (2005), the court ruled that the property owner Rivanna had a duty to maintain its premises in a safe condition that was imposed by both the common law and a Charlottesville ordinance regarding ice and snow removal. Rivanna attempted to absolve itself of liability 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 of 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 Conn. 245, 765 A.2d 505 (2001) (stating that a “party may contract out the performance of a nondelegable duty, but may not contract out his ultimate legal responsibility”).
Can the independent contractor be held liable when the property owner’s duty was “non-delegable”?
The determination that an independent contractor was hired to perform a property owner’s non-delegable duty of maintaining 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 owes a duty of care to an injured invitee. In Artrip, supra, the plaintiff was injured by slipping and falling on a pile of snow and sued the snow removal company. The court did not need to decide the issue of whether the defendant owed the property owner Artrip 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 to use reasonable care in removing the snow from the parking lot, and we agree.” Although this statement is dictum, it indicates the court’s agreement with the fundamental principle stated.
In fact, independent contractors retain an independent duty to use reasonable care when the act they have been hired to perform benefits not only the property owner but also others. As Justice Cardozo stated, “It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276 (N.Y. 1922). This duty is separate from any contractual duty owed to the owner of the property. The independent contractor who provides a service which clearly impacts the safety of other persons retains his own duty of care to any person who foreseeably could be affected by a negligent performance of that service. The Restatement (Second) of Torts states, “In general, when a person undertakes to render services to another, which he should recognize as necessary for the protection of a third person, he is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking. Restatement (Second) of Torts 234(A).
Injured invitees, therefore, are not caught in a Catch-22 between property owners and independent contractors. In Boland, the Johnson Defendants were not hired to do the everyday maintenance and service of the property; they were not hired to maintain the premises in a safe condition. They were hired to do a discrete and isolated service, i.e., clearing a parking lot of snow and ice. Although the case ultimately settled, the Court ruled in this reported decision that the Johnson Defendants could be held liable if they were found to have negligently performed the task. The Johnsons’ alleged negligence was such that it would in the natural course of events produce injury unless special precautions were taken.
An independent contractor can be held liable to an invitee for the reasonably foreseeable consequences of his negligent performance of a service – even though the ultimate duty of maintaining a safe premises cannot be delegated by the landowner.
What does this mean for your cases?
An independent contractor may be just as liable for your client’s injuries as the landowner. The extra pot of insurance may prove helpful in getting a full and fair settlement for your client. Be sure to name both as defendants in any suit and fight hard to keep the independent contractor in the case. If the contractor is not kept in the case, the landowner may argue blaming the contractor to the jury. You don’t want this situation, you want both of them sitting in front of the jury.