The Two Exceptions to Hold a Landowner Liable for Another's Negligence

by Barry P. Goldberg, A Professional Law Corporation
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Barry P. Goldberg looks for all possible sources of recovery when his client's are injured. Often, that inquiry involves "vicarious liability" for the negligent acts of an independent contractor. At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work. Over time, the courts have, for policy reasons, created so many exceptions to this general rule of non-liability that 'the rule is now primarily important as a preamble to the catalog of its exceptions.' (See, Privette v. Superior Court (1993) 5 Cal.4th 689 at 693.) Most notably, there are two such exceptions, "the nondelegable duty and peculiar risk doctrines." (Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1107.)

Property Owner's Nondelegable Duty to Maintain Property in Safe Condition

"The nondelegable duty doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work. The doctrine applies when the duty preexists and does not arise from the contract with the independent contractor." (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 600-601.) Most generally, landowners have a nondelegable duty to maintain their property in a reasonably safe condition. (Knell v. Morris (1952) 39 Cal.2d 450, 456.) "If an independent contractor, no matter how carefully selected, is employed to [maintain property], the possessor is answerable for harm caused by the negligent failure of his contractor to put or maintain the buildings and structures in reasonably safe condition[.]" (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726 (Srithong).)

The maintenance of an elevator in safe working order is a common application of the nondelegable duty doctrine to a real property owner. (Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 259-260 (Brown).) In Brown, a child fell down an elevator shaft after she opened the door of the elevator. (Id. at pp. 258-259.) The trial court was reversed on appeal by instructing the jury that the negligence of the elevator maintenance contractor could not be imputed to the landlord. (Id. at p. 259.) "A landlord cannot escape liability for failure to maintain elevators in a safe condition by delegating such duty to an independent contractor." (Id.)

Cases following Brown similarly focused on the safety of structures or fixtures on the landowner's real property. (E.g., Knell v. Morris (1952) 39 Cal.2d 450, 452-453, 455-456 [water leaked from defective water heater, damaging plaintiffs' property; possessor of land's duty to maintain water heater in safe condition not delegable to plumbing contractor]; Srithong, supra, 23 Cal.App.4th at pp. 724-727 [commercial tenant at mini-mall injured by tar leaking through roof; duty to maintain roof in safe condition not delegable to contractor].

Many plaintiff attorneys unsuccessfully attempt to apply these cases. They forget that the nondelegable duty doctrine does not operate to impose vicarious liability for every negligent act of an independent contractor present at the Property.

Doctrine of Peculiar Risk

The doctrine of peculiar risk "pertains to contracted work that poses some inherent risk of injury to others." (Privette, supra, 5 Cal.4th at p. 693.) "The courts adopted the peculiar risk exception to the general rule of nonliability to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work on the land would not have to depend on the contractor's solvency in order to receive compensation for the injuries." (Id. at p. 694.) Examples of inherently dangerous work include demolition operations (Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 508, overruled on other grounds in Privette, supra, 5 Cal.4th at pp. 700-702 & fn. 4.) and the application of hot tar to a roof (Privette, supra, 5 Cal.4th at pp. 692-693).

"A critical inquiry in determining the applicability of the doctrine of peculiar risk is whether the work for which the contractor was hired involves a risk that is 'peculiar to the work to be done,' arising either from the nature or the location of the work and '"against which a reasonable person would recognize the necessity of taking special precautions."' [Citations.] The term 'peculiar risk' means neither a risk that is abnormal to the type of work done, nor a risk that is abnormally great; it simply means '"a special, recognizable danger arising out of the work itself."'" (Privette, supra, 5 Cal.4th at p. 695.) "Even when work performed by an independent contractor poses a special or peculiar risk of harm, however, the person who hired the contractor will not be liable for injury to others if the injury results from the contractor's 'collateral' or 'casual' negligence. [Citations.] An independent contractor's negligence is collateral . . . when the negligence involves an 'operative detail of the work, as distinguished from the general plan or method to be followed.' [Citation.] But . . . it is often difficult to distinguish those risks that are inherent in the work from those that are collateral, and the line to be drawn between the two types of risks is 'shadowy.'" (Id. at p. 696.)

Many plaintiff attorneys have a difficult time arguing the applicability of the peculiar risk doctrine. The courts do not find many activities as inherently dangerous. Most injury causing risks are "collateral" and have nothing to do with the "peculiar" risk of the inherent work. They try to broadly incorporate aspects of the peculiar risk doctrine into a claim that the landowners' had a nondelegable duty to maintain the Property in a safe condition. In other words, they focus on the activity in which the independent contractor was engaged rather than focusing on the particular condition or structure on the Property that caused the injury.

While it is true that exceptions have largely swallowed the rule of nonliability, the exceptions are so numerous, and they have so far eroded the "general rule," that it can now be said to be "general" only in the sense that it is applied where no good reason is found for departing from it. However, the pendulum is swinging in the other direction. Because California has not completely abandoned the general rule, even in the specific context of a landowner hiring an independent contractor to perform services on his or her property, the courts are now reluctant to depart from the general rule of nonliability.

It is absolutely critical to have counsel very familiar with these exceptions to avoid summary judgment, judgment on the pleadings or a non-suit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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