Tag Archives: independent contractor

NONDELEGABLE DUTIES

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Have you heard the expression “nondelegable duty”?  The issue of a nondelegable duty comes into play when a party hires an independent contractor and the independent contractor commits negligence, primarily in the personal injury context. In other words, a plaintiff wants to hold a defendant liable for the injuries caused by the defendant’s independent contractor.

A nondelegable duty is one that “may be imposed by statute, contract, or the common law.  In determining whether a duty is nondelegable, the question is whether the responsibility at issue is so important to the community that an employer should not be allowed to transfer it to a third party.” Garcia v. Southern Cleaning Service, Inc., 360 So.3d 1209, 1211 (Fla. 3d DCA 2023) (internal citation omitted).

When it comes to CONTRACTUAL duties:

[S]pecifically the principle that one who undertakes by contract to do for another a given thing cannot excuse himself to the other for a faulty performance by showing that he hired someone else to perform the task and that other person was the one at fault. In other words, where the contracting party makes it her or his duty to perform a task, that party cannot escape liability for the damage caused to the other contracting party by the negligence of independent contractors hired to carry out the task.

Gordon v. Sanders, 692 So.2d 939, 941 (Fla. 3d DCA 1997).

What about third parties and not contracting parties?

Liability for breach of contractual duties does NOT automatically form a recovery basis in negligence by third parties not related to the contract.  Garcia, 360 So.3d at 1211 (citation and quotation omitted).

In Garcia, a defendant company entered a contract with a supermarket to provide floor cleaning and janitorial services. It hired a subcontractor (an independent contractor).  The plaintiff fell at the supermarket and sued the defendant company in negligence alleging it owed a nondelegable duty and breached this duty by the slippery floors that caused her injury. The trial court granted summary judgment for the defendant company and the appellate court affirmed. The trial court and appellate court relied on precedent that found “the mere existence of a contract does not create vicarious liability as to third persons for the negligent acts of the independent contractor.” Garcia, 360 So.3d at 122 (citation and quotation omitted).  Hence, the defendant company’s contract with a supermarket does not create a nondelegable duty owed to a third-party that was not a party to the contract.  Id.

Importantly, liability for breach of a nondelegable duty “arises from direct-instead of imputed [or vicarious]-liability.”  Arminger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 874 (Fla. 2d DCA 2010) (“The liability for a nondelegable duty that we impose directly upon the employer of an independent contractor is grounded in a special public policy to protect third persons in an area of inherent danger and to encourage conscientious adherence to standards of safety where injury likely will result in the absence of precautions. The test of liability is the presence or absence of reasonable precautions; and direct liability is not dependent upon any apportionment to an employer of his or her concurrent negligence in failure to ensure that an independent contractor takes necessary precautions.”) (quotation omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

NONDELEGABLE DUTY OF CARE OWED TO THIRD PERSONS

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Although a personal injury case, the recent opinion in Garcia v. Southern Cleaning Service, Inc., 48 Fla.L.Weekly D977a (Fla. 1stDCA 2023) raises an interesting issue regarding nondelegable duties owed to third persons applicable in negligence actions.  Remember, in order for there to be a negligence claim, the defendant MUST owe a duty of care to the plaintiff.  No duty, no negligence claim.

What if a defendant’s duty was delegated to, say, an independent contractor?

[A] party that hires an independent contractor may be liable for the contractor’s negligence where a nondelegable duty is involved. Such a duty may be imposed by statute, contract, or the common law. In determining whether a duty is nondelegable, the question is whether the responsibility at issue is so important to the community that an employer should not be allowed to transfer it to a third party.

Garcia, supra, (internal citations omitted).

In Garcia, a supermarket hired a company to provide floor cleaning and janitorial services.  The company subcontracted the work to an independent contractor. The plaintiff, an employee of the supermarket, fell at the supermarket and sued the cleaning company in negligence claiming the cleaning company “breached its duty of care to warn [the supermaket’s] employees and invitees of the unreasonably slippery floors that caused here injuries.” Garcia, supra.  The cleaning company moved for summary judgment claiming it is not liable for the acts of its independent contractor.  Thus, the fundamental question is whether the duty of care of the cleaning company was a nondelegable duty that could not be transferred to an independent contractor.

The trial court found the duty of care was NOT a nondelegable duty meaning it could be transferred to the independent contractor.  In this case, the cleaning company could not be liable in negligence because it owed no duty to the plaintiff (as that duty was transferred). The First District Court of Appeal affirmed, “[W]e hold that [the cleaning company’s] contract with [the supermarket] did not create a nondelegable duty on [the cleaning company’s] part to [the plaintiff], a non-party to the contract. As such, the trial court properly granted summary judgment as to this issue.”

In affirming, the First District relied on the Third District Court of Appeal’s opinion in Carrasquillo v. Holiday Carpet Service, Inc., 615 So.2d 862 (Fla. 3d DCA 1993), which stands for the proposition that the “‘mere existence of a contract does not create vicarious liability as to third persons for the negligence acts of the independent contractor.’” Garcia, supra, quoting Carrasquillo.  In other words, the contract, in of itself, does not create a nondelegable duty of care to third persons not a party to the contract.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.