 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Nelson v. Grayhawk Properties12/22/2004
a municipality "no more immunizes an independent contractor for its own negligence than an employee of an employer." Id. at 371, 14, 10 P.3d at 629. Therefore, the non-delegable duty doctrine as applied in Wiggs II does not impose an exclusive duty upon a municipality. Rather, it holds that the non-delegable duty doctrine is one of vicarious liability for which an independent contractor can still be held independently liable for its own negligence. In other words, both the municipality and independent contractor have a duty of reasonable care. See Coburn v. City of Tucson, 143 Ariz. 50, 53, 691 P.2d 1078, 1081 (1984) ("assum , without deciding, that because the city controls both the street and the adjacent land its duty as owner of the lot is coextensive with its duty as the possessor of the abutting streets"). The non-delegable duty doctrine only addresses whether the municipality will remain liable to pay for the independent contractor's negligence.
Here, Scottsdale is not a party, but such does not mean that Grayhawk cannot be found liable. Therefore, the trial court erred in granting summary judgment to Grayhawk because it erroneously interpreted Wiggs II to mean that Scottsdale was exclusively liable here. We thus reverse the trial court's judgment and remand for further proceedings.
The Nelsons also ask that we direct partial summary judgment in their favor because Grayhawk itself had a non-delegable duty to keep the roadway reasonably safe for vehicular traffic. According to the Nelsons, Grayhawk's alleged non-delegable duty makes it jointly liable for the negligence of the contractors it hired under Restatement (Second) of Torts § 418 (1965) (one who has a duty to construct a highway in a reasonably safe condition and who entrusts construction to an independent contractor is subject to same liability caused by the contractor's negligence as though the employer had retained the work). The trial court made no ruling on the cross-motion for summary judgment when it erroneously directed summary judgment in favor of Grayhawk. Because this issue would be better addressed initially in the trial court, we decline to direct partial summary judgment to the Nelsons on this basis.
Both the Nelsons and Grayhawk request their costs on appeal under A.R.S. § 12-342 (2003). We deny these requests without prejudice to a later request upon determination of which party is successful in the action.
CONCLUSION
For the foregoing reasons, we reverse and remand for proceedings consistent with this opinion.
JON W. THOMPSON, Judge
CONCURRING:
MAURICE PORTLEY, Presiding Judge
DANIEL A. BARKER, Judge
The above-entitled matter was duly submitted to the Court. The Court has this day rendered its opinion.
IT IS ORDERED that the opinion be filed by the Clerk. IT IS FURTHER ORDERED that a copy of this order together with a copy of the opinion be sent to each party appearing herein or the attorney for such party and to The Honorable Peter C. Reinstein, Judge.
JON W. THOMPSON, Judge
|