Under California law, a non-delegable duty is an obligation that cannot be outsourced to another party by contract. This prevents a party from contracting out of an obligation or duty of care that belongs to that party by law.
The law creates non-delegable duties:
- to ensure that when negligence occurs,
- and a party is harmed by that negligence,
- that the injured victim can be compensated.
Independent Contractors
The issue of non-delegable duties arises most often when dealing with independent contractors. Independent contractors are:
- people or companies hired to do a particular job,
- but are not regular employees.
Independent contractors are usually responsible for any harm they cause. The issue of a non-delegable duty is:
- whether the party that hired the independent contractor;
- can delegate certain duties to the independent contractor; or
- whether liability remains with the hiring party.
Premises Liability Cases
When injuries occur on another’s property, the issue of premises liability arises. Property owners have different duties of care to:
- invitees,
- licensees, and
- trespassers.
Below, our California personal injury attorneys address frequently asked questions about non-delegable duty lawsuits and the injuries you may have suffered:
- 1. What is a non-delegable duty?
- 2. Are independent contractors legally responsible for my injuries?
- 3. What is a premises liability lawsuit?
- 4. What financial compensation can I be awarded?
- Additional Reading
Property owners cannot delegate away their duty of care to others on the property.
1. What is a non-delegable duty?
A non-delegable duty is “an obligation that cannot be outsourced to a third party according to the contract terms. If it is delegated, the second party reserves the right to reject the performance of the obligation.”1 This means that the kind of duty at issue cannot be delegated to another party through a contract.
This prevents a party from contracting itself out of legal responsibility for certain duties, such as keeping employees safe.
1.1. Who is legally responsible for the non-delegable duty?
First, the original party will still be legally responsible for any harm that arises out of a non-delegable duty. Because the duty cannot be delegated, the burden remains with that original party to fulfill its obligations and compensate any victims who were harmed by a breach of that duty.
That does not mean that the “secondary” party is not also responsible for the injury. If, for example, an independent contractor was working on a project, the independent contractor can still be liable for any injuries it causes despite the fact that a non-delegable duty exists. It simply means that there is a possibility that both parties may be responsible for a victim’s personal injuries.
Example: Pulp Faction Paper Company has a number of customers visit every day to buy paper. The owner, Mr. Pulp, is very concerned about safety and hires Ever-Safe, a safety consultant, to evaluate the safety of the offices. Ever-Safe says the Pulp Faction is the safest office environment they’ve ever seen.
Derek is a customer visiting a salesperson at Pulp Faction. Derek trips on a piece of torn carpet and falls into a large stack of unstable boxes containing paper. Derek suffers back and neck injuries. Derek files a personal injury claim against Pulp Faction.
Mr. Pulp says Ever-Safe is to blame because they did not notice the carpet or comment on the unsafe high boxes. However, Mr. Pulp is still liable for Derek’s injuries because Mr. Pulp cannot delegate away the duty of care to visitors. Mr. Pulp may be able to file a lawsuit against Ever-Safe; however, that does not impact Pulp Faction’s liability to Derek.
1.2. Why does the law create non-delegable duties?
The reason non-delegable duties are created is to make sure that when negligence occurs and a party is harmed by that negligence, the injured victim can be compensated by the party who caused the harm. The doctrine ensures that a party is available for a personal injury lawsuit to compensate the injured victim.2
Example: Nickel Properties owns an apartment building. Nickel doesn’t want to worry about maintenance on the property and thinks there are too many safety regulations. Nickel hire’s Dime Handyman to do maintenance on the property.
A loose piece of roof tile falls off the property and hits Penny on the head, causing a serious laceration that requires medical attention. Nickel says they are not to blame because they hired Dime to do maintenance on the property. However, as the controller and owner of the property, Nickel owed Penny a duty of care to keep the property in a reasonably safe condition. Nickel may be liable to Penny for damages.
2. Are independent contractors legally responsible for my injuries?
Generally speaking, an independent contractor is responsible for any harm he or she causes, just as any other individual or business would be under personal injury law. The unique question that exists under the doctrine of non-delegable duties is whether the party who hired the independent contractor is also responsible for any harm caused by the independent contractor.
2.1. When is the hiring party also responsible for the acts of independent contractors?
Generally, a party that hires an independent contractor is not liable for damages caused by that independent contractor to other parties. When the independent contractor is not legally considered an employee of the hiring party, the independent contractor’s acts are typically considered to be so independent that it would be improper and unfair to hold the hiring party responsible.
However, with non-delegable duties, the hiring party may still be responsible despite the general rule of non-liability. Furthermore, the hiring party cannot contract itself out of responsibility. The hiring party may still have a claim (generally a contract claim) against the independent contractor, but that is separate from the underlying liability of the hiring party to the injured party.
2.2. When do non-delegable duties apply to independent contractors?
Non-delegable duties may arise from different statutes, contracts, or common law precedents such as court cases. If a state law lists a specific duty that cannot be delegated, any attempt to do so may be considered invalid, and the hiring party can be held responsible in a personal injury lawsuit. 3
Many non-delegable duties arise as part of the contracts between the parties themselves. An independent contractor may want to make sure that certain duties are not solely the independent contractor’s duties, so he or she may enter specific duties into the contract which cannot be delegated.
Case law, or “common law,” precedents establish many of the non-delegable duties in independent contractor cases. With the help of an experienced attorney at the Shouse Law Group, your case will be independently analyzed to ensure that any non-delegable duties are recognized and every party is held responsible for your injuries.
2.3. What kinds of non-delegable duties may apply to independent contractors?
While state law directly impacts on this question, some common examples of non-delegable duties for independent contractors include:
- The duty to maintain a safe work environment;
- A duty against unreasonable or intentional conduct which causes harm;
- Premises liability obligations of the hiring party.
Whether a non-delegable duty exists can be very complicated, and is best suited for consultation with an experienced personal injury attorney.
3. What is a premises liability lawsuit?
A premises liability lawsuit is a type of personal injury case that arises when the injuries suffered by a victim occur as the result of some defective or unsafe condition on someone else’s property. The injured victim is required to show that the property owner was negligent with regard to the possession or maintenance of the property.
Just because a person is injured on another person’s property, does not mean that the owner was necessarily negligent. A plaintiff must typically prove that the owner was aware of the unsafe condition and failed to take necessary steps to fix the issue, causing an injury.
3.1. What kinds of premises liability cases are there?
There are a variety of situations that apply to premises liability cases, such as:
- Slip and fall cases;
- Inadequate maintenance of the premises;
- Elevator or escalator-related injuries;
- Stair accidents;
- Swimming pool accidents;
- Dog bites;
- Amusement park accidents; and
- Snow and ice issues.
In general, the duty to put and maintain the property in a reasonably safe condition is not delegable. A property owner cannot avoid liability just by hiring someone else to fix a dangerous hazard. If someone is injured, the property owner may still be liable for damages.4
3.2. What is the property owner’s duty of care?
In many states, the level of care a property owner must provide depends on the status of the person visiting the property. In those states, there are three categories of visitors:
- Invitees,
- Licensees, and
- Trespassers.
However, in states like California, the duty owed by a property owner is not based on the status or category of visitor. Instead, the property owner is considered negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition.
The type of visitor may be a factor in determining whether the property owner used reasonable care to keep the property safe.5
3.3. Invitees
An invitee is someone who has the property owner’s express or implied permission to enter the property. These usually include relatives, friends, or neighbors. This will also include customers at a store in most situations. A property owner has a duty of reasonable care to keep the property reasonably safe for any invitees on his or her property.
3.4. Licensees
A licensee is someone with the property owner’s express or implied permission to enter the property but that person enters the property for his or her own purposes. These typically include salesman who enter a property or those who enter a business without the intent to buy anything (maybe they just need to use the bathroom.) The property owner has the duty of care only to warn the licensee of dangerous conditions that create an unreasonable risk of harm if:
- The property owner is aware of the condition, and
- The licensee is not likely able to do discover it for him or herself.
3.5. Trespassers
A trespasser is a person who does not have the authorization to be on the property. Landowners typically owe no duty of care to adult trespassers. Child trespassers are treated differently and landowners have a duty to exercise reasonable care to avoid a reasonably foreseeable risk of harm that is caused by “artificial” conditions on the land, such as swimming pools or man-made ponds.
Example: Charlotte is trying to get her pool cleaned and uses a heavy dose of chemicals to clean the algae. On a hot day, Dylan, 40-years-old, is walking by and sees no car in the driveway at Charlotte’s house. He decides to jump in her pool to cool off. Dylan jumps in the pool and suffers chemical burns. Charlotte may not be liable because Dylan was a trespasser and she does not owe a duty to adult trespassers.
Example: Later that day, 5-year-old Diego enters through Charlotte’s unlocked gate and jumps in the pool. Diego suffers chemical burns. In this case, Charlotte may be liable if it was foreseeable that a neighborhood child might wander into her yard and use the pool.
4. What financial compensation can I be awarded?
Once you and your attorney prove your case, the judge or jury can award financial compensation for your injuries. These are compensatory damages and can include:
- Medical bills,
- Emergency treatment;
- Surgical costs;
- Future medical costs, including rehabilitation;
- Loss of income;
- Loss of future income;
- Loss of earning capacity;
- Loss of consortium;
- Compensation for loss of limbs, scarring, or disfigurement; and
- Pain and suffering.
In limited circumstances, punitive damages may be available. However, punitive damages in a personal injury claim may require a showing of:
- Intentional harm,
- Recklessness, or
- Fraud.
If the accident resulted in the death of someone you love, you may be able to file a wrongful death lawsuit and obtain:
- Funeral and burial expenses;
- Financial losses; and
- Compensation for loss of support and companionship.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Title VII Sexual Harassment: Recognizing an Employer’s Non-Delegable Duty to Prevent a Hostile Workplace – Columbia Law Review.
- Personal liability, vicarious liability, non-delegable duties and protecting vulnerable people – Torts Law Journal.
- Patient Assaults: Health Care Providers Owe a Non-Delegable Duty to Their Patients and Should Be Held Strictly Liable for Employee Assaults Whether or Not within the Scope of Employment – Ohio N.U. Law Review.
- Vicarious Liability for Employee Theft: Muddling Vicarious Liability for Conversion with Non-Delegable Duties – Lloyd’s Maritime and Commercial Law Quarterly.
- Hospital Liability for the Right Reasons: A Non-Delegable Duty to Provide Support Services – Seton Hall Law Review.
Legal References
- Black’s Law Dictionary. What is NON-DELEGABLE DUTY?; California Jury Instruction (CACI) 3713.
- Srithong v. Total Investment Co., (1994) 23 Cal.App.4th 721, 727 (“The ‘recognition of nondelegable duties tends to ensure that there will be a financially responsible defendant available to compensate for the negligent harms caused by that defendant’s activity.‘”)
- Bowman v. Wyatt, (2010) 186 Cal.App.4th 286, 316 111 Cal.Rptr.3d 787.
- Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 260.
- Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 25.