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Thomas v. E-Z Mart Stores11/2/2004
ith respect to Thomas, the liability (ultimate legal responsibility) of that duty which is owed to Thomas, as an invitee, cannot be delegated by E-Z Mart.
We recently discussed non-delegable duties in Copeland v. Lodge Enterprises, Inc., 2000 OK 36, 4 P.3d 695.
Although a hirer ordinarily cannot be held liable for the negligence of an independent contractor, the rule of non-liability does not apply where the hirer contracts for the performance of a duty imposed by law. Hence, while an innkeeper may hire an independent contractor to perform the former's non-delegable duty, he (or she) may not pass off to an independent contractor the ultimate legal responsibility for the proper performance of that duty. Under the non-delegable duty rule, an innkeeper may be held vicariously liable for an independent contractor's failure to exercise reasonable care even if the innkeeper has himself exercised due care.
Copeland, 2000 OK 36, at 12, 4 P.3d at 700, (emphasis and notes omitted).
We are not alone in describing this duty to an invitee as non-delegable.
As one commentator points out, courts generally agree that the duty of a possessor of land to keep the possessor's premises in a reasonably safe condition for business invitees is a non-delegable duty. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 511-12 (5th ed. 1984). See also 41 Am.Jur.2d Independent Contractors § 46, at 815 (1968); Thomas E. Miller, Annotation, Storekeeper's Liability for Personal Injury to Customer Caused by Independent Contractor's Negligence in Performing Alterations or Repair Work, 96 A.L.R.3d 1213 (1979). As one court has noted, the term "non-delegable duty" in this context is somewhat of a misnomer because "the owner is free to delegate the duty of performance to another, but he cannot thereby avoid or delegate the risk of nonperformance of the duty." Rowley, 305 Md. at 466, 505 A.2d at 499.
Kragel v. Wal-Mart Stores, Inc., 537 N.W.2d 699, 703 (Iowa 1995). This non-delegable duty is not new. "It is generally agreed that the obligation as to the condition of the premises is of such importance that it cannot be delegated, and that the occupier will be liable for the negligence of an independent contractor to whom he entrusts maintenance and repair." Prosser, The Law of Torts, § 61, at 395 (4th ed.1971), (citations omitted).
One court has explained in the following manner why landowners may not delegate ultimate legal liability to others.
The non-delegable duty of the property owners exception is premised on principles of basic fairness as well as policy considerations relating to allocation of the risk. An owner may be held vicariously liable for the negligence of its independent contractor because the owner in possession has retained control over the premises. . . . This affirmative responsibility is consistent with an owner's general duty of reasonable care under all the circumstances (see Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868). Clearly it would be inequitable to permit a property owner to escape liability by merely delegating the obligation to repair or maintain the premises to an independent contractor. Moreover, the underlying policies of public safety and building owner responsibility provide a reasonable basis for imposing liability (see Thomassen v. J & K Diner, supra at 426-427, 549 N.Y.S.2d 416, citing Koepke v. Carter Hawley Hale Stores, 140 Ariz. 420, 682 P.2d 425; see also Prosser and Keeton, Torts § 71 at 509 [5th ed] ).
The broadest application of the non-delegable duty exception has been in those cases, such as here, where the owner owes a higher duty of c
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