NONDELEGABLE DUTIES

Posted on May 12, 2024May 12, 2024 by David Adelstein

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

Posted on May 14, 2023May 14, 2023 by David Adelstein

Although a personal injury case, the recent opinion in Garcia v. Southern Cleaning Service, Inc., 48 Fla.L.Weekly D977a (Fla. 1^stDCA 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.

EXISTENCE OF “DUTY” IN NEGLIGENCE ACTION IS QUESTION OF LAW

Posted on December 18, 2018April 24, 2020 by Edward Garber

In a negligence action, the issue of whether a duty applies is a question of law. See Limones v. School Dist. of Lee County, 161 So.3d 384, 389 (Fla. 2015) (“[T]he existence of a duty is a legal question because duty is the standard to which the jury compares the conduct of the defendant.”); McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992) (“Since duty is a question of law, an appellate court obviously could reverse based on its purely legal conclusion that no such duty existed.”). Thus, the trial court determines, as a matter of law, whether a legal duty of care applies in a negligence action.

Florida law recognizes the following four sources of duty: (1) statutes or regulations; (2) common law interpretations of those statutes or regulations; (3) other sources in the common law; and (4) the general facts of the case.

See id.

Oftentimes it is the fourth source – the general facts of the case – that comes into play to determine whether the defendant owed the plaintiff a duty of care.

To determine whether a defendant owed the plaintiff a duty under the general facts of the case, the issue becomes “whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” McCain, 593 So.2d at 502.

For example, in White v. Ring Power Corp., a personal injury case discussed here regarding an expert’s qualifications, the trial court granted summary judgment (as a matter of law) finding that the lessor of a crane did NOT owe the plaintiff a duty to download certain crane overload data before renting the crane to the lessee. The appellate court affirmed because nothing in the record established that the failure to download such data by the lessor before renting the crane created a broader zone of risk to the plaintiff.

UNDERTAKER’S DOCTRINE IN NEGLIGENCE CLAIMS — NO GOOD DEED GOES UNPUNISHED?

Posted on May 4, 2018May 4, 2018 by Edward Garber

There are many times the old adage, “No good deed goes unpunished,” rings true. At one point in time, or more likely many points in time, we have all felt this why. We undertook a good deed only to feel unappreciated or the good deed backfires.

In Florida, there is a legal doctrine known as the undertaker’s doctrine. Just the name of the doctrine has a morbid undertone, right? This doctrine applies in negligence scenarios because it establishes a duty that the undertaker owes to another, even if he undertook a service because he is a swell guy. This undertaker’s doctrine has been described as follows:

Whenever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service — i.e., the ‘undertaker’ — thereby assumes a duty to act carefully and to not put others at an undue risk of harm. The undertaker is subject to liability if: (a) he or she fails to exercise reasonable care, which results in increased harm to the beneficiary; or (b) the beneficiary relies upon the undertaker and is harmed as a result.

Muchnick v. Goihman, 43 Fla.L.Weekly D986b (Fla. 3d DCA 2018 (internal citations and quotations omitted).

An example of the application of the undertaker’s doctrine can be found in Muchnick where the appellate court held former tenants could assert a negligence claim against their real estate rental agent. In this case, a real estate agent knew a family looking to rent another high-end apartment because they lived in the same building. He worked for a real estate brokerage firm and he approached the family about renting another unit in the same building. During the walk through of that unit, there were items the family wanted repaired and the agent assured the family they would be addressed prior to the family moving in. The family rented the apartment and the brokerage firm was listed as the broker for the transaction.

When the family moved into the unit, the items they wanted repaired were not. And, to make matters worse, the family discovered a serious water intrusion and damage problem that resulted in mold getting into to the apartment’s ventilation system. The family communicated predominantly with the real estate agent regarding the issues as the owner of the unit lived abroad and the agent lived in the building. During a deposition, the father claimed that the agent told him that since he lived in the same building he would be the go-to-guy to address any issues with the apartment and undertake repairs. The issues did not get resolved which impacted the children’s health and they were forced to terminate the lease early and relocate.

Initially, the real estate agent argued that his firm, and not him personally, should have been sued, because he was acting in the scope of his employment as a real estate agent in dealing with the family. The appellate court rejected this argument stating:

[J]ust because Goihman [agent] was acting in the scope of his employment when he rented the apartment, promised to fix it, and managed the repairs, doesn’t mean that he was shielded from personal liability under all circumstances. [O]fficers or agents of corporations may be individually liable in tort if they commit or participate in a tort, even if their acts are within the course and scope of their employment. All that needs to be alleged is that the agent or officer personally participated in the tort, even if the complained of action was because of and entirely within the scope of his or her employment.

Muchnick, supra (internal citations and quotations omitted).

Next, the real estate agent argued that since he did not own the apartment unit, he did not owe a duty to the family that was renting the unit to fix and manage the repairs. The appellate court rejected this argument too…because of the undertaker’s doctrine. Once the real estate agent volunteered, even if gratuitously, to fix the problems and manage the repairs, he assumed a duty to exercise reasonable care in performing those services.

It is great to be a swell guy. But, when you agree to undertake a service, even if that service is nothing but a good deed you are performing, you have a duty to use reasonable care in performing that service to prevent harm to the beneficiary of that service.

CGL INSURER’S DUTY TO DEFEND INSURED DURING PRE-SUIT 558 PROCESS: MAYBE?

Posted on December 14, 2017December 14, 2017 by Edward Garber

In earlier postings, I discussed the issue of whether Florida Statutes Chapter 558’s pre-suit construction defects process triggers a CGL insurer’s duty to defend. The issue was whether Florida’s 558 pre-suit notice of a construction defect and repair process met the definition of “suit” within a standard CGL policy.

A standard CGL policy defines the term “suit” as:

“Suit” means a civil proceeding in which damages because of “bodily injury,” “property damage” or “personal and advertising injury” to which this insurance applies are alleged. “Suit” includes:

a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or

b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.

The Florida Supreme Court in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 42 Fla. L. Weekly S960b (2017) held that Florida’s 558 process is an “alternative dispute resolution proceeding” within the definition of suit in a CGL policy. However, since it falls within an “alternative dispute resolution proceeding,” the insurer’s consent is required to invoke its duty to defend its insured during this pre-suit process. This is especially true since a recipient’s participation in the pre-suit 558 process is voluntary and not mandatory and this process does not produce any binding results.

Accordingly, an insured-contractor or subcontractor that receives a 558 notice of a construction defect should absolutely tender the notice to its CGL insurer. No doubt about it. In doing so, the insured should inquire and perhaps encourage the insurer to participate in the process and defend the insured’s interests. If the insurer is not willing to participate in this process, this does not mean the insured should refuse too. Rather, the insured simply needs to recognize that it will be responsible for its own fees and costs in doing so. The insurer’s consent is required to invoke its duty to defend the insured during this process.

This opinion, unfortunately, doesn’t provide a whole lot of value (in my opinion) because if an insurer does not consent to participating in the process and defending its insured, it puts the insured in a position where it may be better off being sued where the insurer will now defend it and engage the consultants to investigate the claimed defects. Many insurers, however, will capitalize on the 558 process by providing a defense to its insured as opposed to simply waiting for the inevitable construction defect lawsuit.