In June, 2018 our Utah Supreme Court added a degree of difficulty to our premises liability analysis. The Court took on the landowner's duty to keep his premises safe to business invitees, commonly referred to as the "nondelegable duty" doctrine. More nuanced, future decisions will have to refine the Court's ruling on this matter but this was a significant development in Utah Premises Liability Law.
On June 12, 2018 the Utah Supreme Court issued its ruling in Rodriguez v. Kroger Company and J&I Maintenance, 422 P.3d 815 (Utah 2018). This is the latest Utah appellate case to address the “non-delegable duty” doctrine as applied in Utah.
This was a slip and fall case in a Kroger grocery store. Plaintiff arrived at the Kroger/Smith’s grocery store around 6:00 a.m. to purchase breakfast. She slipped and fell in a puddle of soapy water and injured her head, neck and shoulders. She then sued Smith’s Food & Drug Centers, Inc and the janitorial company hired by Smith’s to clean the floors, J&I Maintenance. J&I hired an independent contractor to do the cleaning work. The independent contractor settled with Plaintiff before trial, but a trial proceeded between Plaintiff, J&I and Smith’s.
The jury returned a verdict allocating fault as follows: 5% to Smith’s, 0% to J&I, 75% to the independent contractor and 20% to Plaintiff. Prior to the appeal, Plaintiff and her attorneys argued that Smith’s and J&I were liable for the independent contractor’s share of the damages, but the trial court disagreed and entered a judgment consistent with the jury’s findings.
Plaintiff argued on appeal that because Smith’s was charged with a non-delegable duty to keep its premises safe, the court should have required Smith’s to pay damages for the independent contractor’s negligence, in addition to its own. Plaintiff also argued that J&I was responsible for the fault of the independent contractor’s share of the fault. The Utah Supreme Court concluded that Smith’s was responsible for the damages the independent contractor caused and that Plaintiff failed to demonstrate that the janitorial company also assumed Smith’s non-delegable duty, no error was made by the trial court’s refusal to enter judgment against the J&I for the IC’s negligence.
The Utah Supreme Court spent considerable time explaining its rationale that Smith’s was responsible for the independent contractor’s negligence under the non-delegable duty doctrine. To begin, the court’s discussion focused on the nature of the legal relationship between the parties to determine what duties are owed. The Court gave this explanation of Utah’s non-delegable duty doctrine: “Generally, ‘the employer of an independent contractor is no liable for physical harm caused to another by an act or omission of the contractor or his servants.’” Citing Magana v. Dave Roth Constr., 215 P.3d 143 (Utah 2009). Again, relying on Magana, the court stated: “this general rule recognizes that one who hires an independent contractor and does not participate in or control the manner in which the contractor’s work is performed owes no duty of care concerning the safety of the manner or method of performance implemented.”
The non-delegable duty doctrine, however, provides an exception to the general rule stated above. “The owner of a premises has a nondelegable duty to keep her premises reasonably safe for business invitees.” Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991). “Because the landowner may not relieve herself of the duty, she is liable for an independent contractor’s negligence as if it were her own.” Sullivan v. Utah Gas Serv. Co., 353 P.2d 465, 466-67 (Utah 1960). Stated another way, “a nondelegable duty means that an employer of an independent contractor, by assigning work consequent to a duty, is not relieved from liability arising from the delegated duties negligently performed.” Price v. Smith’s Food & Drug Ctrs., Inc. 252 P.3d 365 (Ut App 2011) (quoting 41 Am. Jur. 2D Independent Contractors Section 43 (2005).
Further, the Court stated: “A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons . . . and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise protect them against it.” RESTATEMENT (SECOND) OF TORTS § 344 (AM. LAW. INST. 1965).
“The very essence of the nondelegable duty doctrine . . . is that the property owner is fully liable to a plaintiff who has been injured as a result of a breach of a nondelegable duty regardless of whether the property owner is actually at fault or the degree of fault.” Smith v. Town of Greenwich, 899 A.2d 563, 583 (Conn. 2006).
The counter-argument raised by Smith’s and J&I was this concept directly refuted certain provisions in the Liability Reform Act (LRA), namely the provision that you can only be held responsible for your own share of fault. The Utah Supreme Court addressed this valid concern by stating that LRA liability is based on fault, or stated another way, LRA fault is an actionable breach of a legal duty. Contrast this to the recognized nondelegable duty doctrine arises from respondeat superior principles and that this latter principle escapes application under the LRA.
Respondeat superior does not involve an act or breach by a duty by the defendant; rather, it involves a relationship (master and servant) and the only fault to be considered is the fault of the agent. The principal’s liability is not based on fault; rather, it is “pure pass-along liability.”
Stay tuned. . .
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