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Williams v. Central Consolidated School District11/12/1997
ses that created a hazardous condition resulting in injury); see also Page, (supra) , § 4.6, at 81 (discussing premises liability for hidden danger of glass door panel which at certain angles might be confused for open space). We do not mean to suggest that the state can be held vicariously liable under the Tort Claims Act for the negligence of independent contractors. Nor do we suggest that the state can be held strictly liable under Section 41-4-6. See . Nonetheless, under the express wording of Section 41-4-6, the state is responsible for acts of negligence of its own "public employees" which cause or permit a dangerous condition on the premises.
{16} Even if a building is designed by an independent private architect, the state is responsible for its own duty of care in and around the work of the architect as part of its "operation or maintenance" of the building. For example, any employer can be held liable for negligence in the selection of an independent contractor. See Restatement (Second) of Torts § 411 (1965). After a contractor's work is completed, the employer may have a duty to inspect and otherwise "exercise such care as the circumstances may reasonably require him to exercise to ascertain whether the land . . . is in reasonably safe condition after the contractor's work is completed." Restatement (Second) of Torts § 412 (1965). The "most usual application [of this duty] is to the possessors of land who entrust the work of erecting or repairing a building thereon to a contractor." Restatement, (supra) , § 412 cmt. b, at 382. In other words, under common principles of premises liability as applied to the state by Section 41-4-6, and even accounting for limits on vicarious liability, the state as owner or occupier of land has its own responsibility of due care for the safe condition of the physical premises, and that duty is made no more or any less compelling by the presence of defects in design.
{17} Turning to the case at hand, it is clear that the trial court erred when it declared Defendant immune from suit under the Act simply because the unsafe window may have been rooted in a design defect. We do not say that Defendant is vicariously liable for negligence of the architect as an independent contractor. However, Defendant's duty certainly includes the exercise of due care by its own employees with respect to a physical premises that has been rendered unsafe for its foreseeable use. Defendant has such a duty by operation of law regardless of whether the dangerous condition originated in a defect in design. It is up to Plaintiff to prove a breach of that duty by Defendant's employees, as alleged, as well as proximate cause, in regard to what transpired or what should have transpired in the exercise of ordinary care during the days, months, and years after the architect completed its work and when Defendant's employees walked that same school hallway that had allegedly been rendered unsafe for school children. This breach by Defendant must be separate from whatever breach of duty the architect may have committed. We, of course, entertain no opinion on whether Plaintiff can sustain his burden; we simply conclude that nothing in Section 41-4-6 bars Plaintiff from his right to try.
Conclusion
{18} We reverse the district court's order of dismissal and remand for further proceedings consistent with this opinion. Because of our ruling, we need not discuss other matters raised on appeal.
{19} IT IS SO ORDERED.
RICHARD C. BOSSON, Judge
WE CONCUR:
LYNN PICKARD, Judge
M. CHRISTINA ARMIJO, Judge
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