Nondelegable Duties

David Adelstein | Florida Construction Legal Updates

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).

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