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Broome v. Byrd11/8/1991
APODACA, Judge.
Plaintiff appeals the trial court's summary judgment dismissing defendant Charles Byrd, the owner of a commercial building (defendant), from plaintiff's negligence action. Plaintiff, an employee of defendant's tenant, was injured when she tripped and fell over a painter's drop cloth as she was leaving work. The drop cloth had been placed on the floor of a vestibule area just outside the door of her employer's business by an employee of a painter hired by defendant to paint the exterior of the building. The trial court entered summary judgment on the basis that the painter was an independent contractor and that defendant was thus insulated from liability as a matter of law. The parties agree that the painter was an independent contractor and that the injury occurred in an area of the building over which defendant had control.
The sole issue presented by this appeal is whether defendant, as the owner of the building, can be held liable for injuries resulting from a condition created by the alleged negligence of an independent contractor hired by defendant to make repairs in that part of the building over which defendant retained control. We hold that, under the facts of this appeal, notwithstanding the general rule that an employer of an independent contractor is not liable for the contractor's negligence, defendant can be held vicariously liable for any negligence of the independent contractor. Therefore a jury question is presented and the summary judgment is reversed.
Discussion
In New Mexico, the owner of a building owes business visitors the duty to use ordinary care to keep the premises safe. SCRA 1986, 13-1309 (Repl. 1991). Plaintiff, as an employee of defendant's tenant, was a business visitor to whom defendant, as owner of the building, owed such a duty. See SCRA 1986, 13-1303 (Repl. 1991); Latham v. Aronov Realty Co., 435 So. 2d 209 (Ala. 1983). Defendant seeks to avoid liability for plaintiff's injuries by resorting to the general rule that an employer is not vicariously liable for the negligence of an independent contractor. SCRA 1986, 13-404; Restatement (Second) of Torts 409 (1965) (Restatement). Plaintiff, on the other hand, contends that various exceptions to this general rule apply, making defendant liable. Indeed, our supreme court has noted that this rule of nonliability has numerous exceptions. (citing Restatement ยงยง 409-429 (1965)). Generally New Mexico law does not allow a landowner to escape liability by delegating repair and maintenance
functions to third parties. See, e.g., ; . However, no New Mexico case has discussed the potential liability of an employer for the negligence of an independent contractor in the context of the facts in this appeal.
Our review of cases from other jurisdictions indicates that, generally, the owner of a building has a nondelegable duty to maintain safely those areas over which he has retained control and that this duty cannot be avoided by hiring an independent contractor to make repairs. See Koepke v. Carter Hawley Hale Stores, Inc., 140 Ariz. 420, 682 P.2d 425 (Ct. App. 1984) (owner of department store held vicariously liable for injury to customer who tripped over a chalk line stretched across an aisle by employees of independent contractor hired to remodel the store, if contractor's acts constituted negligence); Misiulis v. Millbrand Maintenance Corp., 52 Mich. App. 494, 218 N.W.2d 68 (1974) (lessor of a shopping center held vicariously liable for injuries to a tenant's business invitee who struck a pile of grave
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