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Broome v. Byrd11/8/1991
l and debris left in the parking lot by independent contractor hired to repair the roof); Mayer v. Fairlawn Jewish Center, 38 N.J. 549, 186 A.2d 274 (1962) (owner of building held vicariously liable for injury to invitee who fell into an unguarded stairwell under construction by independent contractor hired to remodel the building); Lipman Wolfe & Co. v. Teeples & Thatcher, Inc., 268 Or. 578, 522 P.2d 467 (1974) (en banc) (owner of retail department store held vicariously liable for injury to a customer who slipped on a slippery substance left on floor by independent contractor hired to lay tile); Damron v. C.R. Anthony Co., 586 S.W.2d 907 (Tex. Ct. App. 1979) (owner of a commercial building held liable for damage to tenant's property when independent contractor hired to repair the roof left it inadequately covered during a rainstorm); see also 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 & Supp. 1991). In holding the owner liable, these courts relied on the Restatement exceptions to the general rule of employer nonliability, as well as public policy reasons.
Two of these cases are particularly persuasive. In Misiulis, the Michigan Court of Appeals held that a commercial landlord has a nondelegable duty to his tenants and others rightfully on the premises with respect to repairs undertaken by him and that the landlord cannot avoid this duty by hiring an independent contractor. See Misiulis v. Millbrand Maintenance Corp., 218 N.W.2d at 74. The court relied on Restatement Section 420, which states:
A lessor of land who employs an independent contractor to make repairs which the lessor is under no duty to make, is subject to the same liability to the lessee, and to others upon the land with the consent of the lessee, for physical harm caused by the contractor's negligence in making or purporting to make the repairs as though the contractor's conduct were that of the lessor.
The Michigan court also noted that, "'when the lessor "entrusts the repairs" to an independent contractor, the general weight of authority is that his duty of care in making them cannot be delegated, and he will be liable for the contractor's negligence.'" Id. at 71 (quoting William L. Prosser, The Law of Torts 63, at 410-12 (4th ed. 1971)). See generally 49 Am. Jur. 2d Landlord and Tenant 875 (1970 & Supp. 1991).
As with the plaintiff in Misiulis, plaintiff in this case is accused of contributory negligence. A disputed factual issue concerning whether the contractor placed warning signs alerting building occupants or passersby to the fact that the work was being performed by the independent contractor and indicating other means of access exists. Whether plaintiff contributed to her injuries through her own negligence and, if so, the resulting apportionment of the percentage of fault under our system of comparative negligence are factual determinations to be made by the fact finder. See ; {PA}
.
In Koepke, the Arizona court adopted Restatement Section 422 as an exception to the general rule of employer nonliability for the negligence of independent contractors. See Koepke v. Carter Hawley Hale Stores, 682 P.2d at 428. Section 422 of the section of the Restatement provides:
A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside of the land for physical harm caused to them by the unsafe condi
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