Launching our nets to catch the largest number of defendants with liability increases the potential amount of liability coverage available to our clients. Naming all potential defendants liable also protects our clients from a named defendant blaming someone who was not named defendant in the case. When evaluating premises liability cases, many of us can overlook potential defendants. Although the duties of an owner are not delegable, do not think that the responsibility is limited only to him.
What is the general duty of the property owner?
Virginia law requires landlords to maintain reasonably secure facilities for their guests to visit. Although a property owner is not an insurer of the guest’s safety on the premises, he must use ordinary care to make the premises reasonably safe for the guest’s visit. Knight v. Moore, 179 Va. 139, 145, 18 SE2d 266, 269 (1942) (citing cases). Furthermore, while a property owner “must notify or warn of an unsafe condition known to him and unknown to the guest, such notification is not necessary when the dangerous condition is overt and obvious, and is apparent to a reasonable person exercising ordinary care for your 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)). Furthermore, 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 danger, … 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.
The landlord has a duty to take regular care to keep common areas in reasonably safe condition and to use customary care to remove snow or ice from outdoor entry walkways under his control within a reasonable time after Let the snow stop falling Artrip v. EEBerry Equip. 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 the repairs are made voluntarily or not. Oliver v. Cashin, 192 Va. 540, 65 SE2d 571 (1951). See also Virginia Model Jury Instruction 24.020.
An owner cannot delegate any of the functions mentioned above to an independent contractor. The Virginia Supreme Court held in Love v. Schmidt, that if the duty to maintain a premises in 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 landlord (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 her claim for damages. Schmidt tried to avoid any responsibility by blaming Slater. The Court said that Schmidt could not avoid liability. Since 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 employing an indep. The contractor is not responsible for injuries to third parties caused by the negligence of the contractor. Kesler v. Allen, 233 Va. 130 (1987). In Kesler, both the landlord and the indep. contractor were sued. The landlord had hired the indep. contractor to repair a gate that was in 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 liable for the independent contractor’s actions?
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 declared that the negligent act at Kesler was not due to the fulfillment of the owner’s duty to provide a safe premises, but to the indep. negligence of the contractor in performing a discreet act. The landlord did not delegate to the independent contractor his duty to maintain common areas in 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 his deeds. At Love, the independent contractor handled all of the facility maintenance. That is the duty that a landlord cannot delegate.
Love and Kesler, when read together, are compatible. A landlord cannot be exempted from liability by delegating his duty to an indep. contractor; however, that independent contractor will be liable for its own negligence in performing discrete and isolated work.
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). At Southern Floors, the Court repeated the general rule that an owner who employs an independent contractor is not liable for injuries to third parties caused by the contractor’s negligence. The Southern Floors Court further commented on the difference between an injury arising from the owner’s duty to provide a safe premises and an injury arising from the negligence of an independent contractor. The Court differentiates the facts of Love and Kesler. At Love, the independent contractor handled the day-to-day maintenance, service and upkeep of the building. At Kesler, the independent contractor was tasked with a discrete, isolated service: replacing a door. Although the owner of Love could not delegate the day-to-day maintenance and care of the building to an independent contractor, the independent contractor at Kesler could be held liable for negligence in performing a discrete act. Therefore, the Supreme Court in Southern Floors made a distinction between the duty to maintain the property in a safe condition and the duty of care required when hiring one to perform a repair or improvement.
In Boland v. Rivanna Partners and Johnson Backhoe, 69 Va. 308 (2005), the court ruled that the owner of the Rivanna property had a duty to maintain its facilities in safe condition imposed by both common law and a Charlottesville ordinance regarding ice and snow removal. Rivanna tried to disclaim liability by delegating this duty to an independent contractor. The independent contractor tried 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 Conn. 245, 765 A.2d 505 (2001) (which establishes that a “party can contract the fulfillment of a non-delegable duty, but cannot contract its ultimate 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 the owner’s non-delegable duty to maintain a safe premises does not mean that the independent contractor will obtain 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 to care for an injured guest. In Artrip, supra, the plaintiff was injured by slipping and falling on a snowdrift and sued the snow removal company. The court did not need to decide the question of whether the defendant owed the property owner Artrip a duty of care because the parties had agreed that he did. The court explicitly stated: “In the present case, the parties agree that Berry owed Artrip a duty to use reasonable care when removing snow from the parking lot, and we agree.” While this statement is dictum, it indicates the court’s agreement with the stated fundamental principle.
In fact, independent contractors retain an independent duty to exercise reasonable care when the act they have been hired to perform benefits not only the property owner but others as well. As Judge Cardozo said, “it is an ancient knowledge that whoever assumes to act, even if it is gratuitous, may be subject to the duty to act with caution, if he acts at all.” Glanzer v. Shepard, 233 NY 236, 135 NE 275, 276 (NY 1922). This duty is independent of any contractual duty owed to the property owner. The independent contractor who provides a service that clearly impacts the safety of others retains its own duty of care to anyone who could foreseeably be affected by a negligent performance of that service. The Reaffirmation (Second) of Torts establishes: “In general, when a person agrees to provide services to another, which must be recognized as necessary for the protection of a third person, he is subject to liability before the third person for the resulting physical damage for failing to exercise reasonable care to protect your business Reaffirmation (second) of grievances 234 (A).
Injured guests, therefore, are not caught in a Catch-22 between homeowners and independent contractors. At Boland, the Johnson Defendants were not hired to do the daily maintenance and servicing of the property; they were not hired to keep the facilities in safe condition. They were hired to perform a discreet and isolated service, that is, clearing a parking lot of snow and ice. Although the case was ultimately resolved, the Court ruled in this informed decision that the Johnson Defendants could be held liable if they are found to have performed the task negligently. The Johnson’s alleged negligence was such that, in the natural course of events, it would result in injury unless special precautions were taken.
An independent contractor may be held liable to a guest for the reasonably foreseeable consequences of his negligence in performing a service, even though the owner cannot delegate the ultimate duty of maintaining a safe premises.
What does this mean for your cases?
An independent contractor can be just as liable for his client’s injuries as the landlord. The additional amount of insurance can be helpful in obtaining a complete and fair settlement for your client. Be sure to name both of you as defendants in any lawsuit, and fight hard to keep the independent contractor in the case. If the contractor does not stand on the case, the owner can argue by blaming the contractor to the jury. You don’t want this situation, you want both of you to sit in front of the jury.
