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Broome v. Byrd11/8/1991
tion of the structure
(a) while the possessor has retained possession of the land during the progress of the work....
After observing that cases from other jurisdictions have imposed such liability under the theory that the employer has a nondelegable duty to business invitees, Koepke identified three policy reasons for subjecting the owners to such liability. First, the owner obtains both the benefit of the contractor's work and the economic benefits of letting business invitees continue conducting business in the building. Second, an owner can insure against risks and incorporate these expenses into its overhead. Third, the owner is in a position to decrease costs and prevent or minimize risks. For example, the owner can hire an independent contractor that is financially responsible, insist that the contractor indemnify the owner for any loss due to the contractor's negligence, and require the contractor to follow safety procedures and remedy dangerous conditions. Id. at 428-29.
We consider the reasoning of the Arizona and Michigan courts to be sound and adopt their analysis in this appeal. In so doing, we conclusively apply those exceptions to the general rule of employer nonliability articulated in Sections 420 and 422 of the Restatement. But see Fettig v. Whitman, 285 N.W.2d 517, 522-23 (N.D. 1979) (refusing to hold a general contractor vicariously liable for injury to property owner who fell through an open stairwell left uncovered by an independent contractor, despite acknowledging significant policy reasons for holding employer liable), overruled on different issue by Shark v. Thompson, 373 N.W.2d 859 (N.D. 1985). Notably, Restatement Sections 420 and 422 are consistent with the law of New Mexico. See Mitchell v. C & H Transp. Co.; . We have not uncovered any precedent to the contrary.
Defendant benefitted economically from the continued operation of the commercial building throughout the repairs and could most easily distribute the loss occasioned by plaintiff's injury . Had the drop cloth been negligently placed by an employee of defendant while making similar repairs, defendant undoubtedly could be held liable. The only basis for avoiding liability is that defendant happened to hire an independent contractor to do the work. We see no principled basis for letting an owner of a building avoid the duty merely because of the manner in which he chose to have repairs done. We thus hold that an owner of a commercial building can be held vicariously liable for an independent contractor's negligence where the negligence created a dangerous condition causing injury to a business visitor in those areas of the building over which the owner retains control.
Our inquiry does not stop here, however. Defendant next argues that, even if he could normally be held liable for the negligence of the independent contractor, such negligence was "collateral" negligence only, for which he should not be held liable. Specifically, defendant relies on Restatement Section 426, which states:
An employer of an independent contractor, unless he is himself negligent, is not liable for physical harm caused by any negligence of the contractor if
(a) the contractor's negligence consists solely in the improper manner in which he does the work, and
(b) it creates a risk of such harm which is not inherent in or normal to the work, and
(c) the employer had no reason to contemplate the contractor's negligence when the contract was made.
Comment a to Section 426 defines "collateral" negligence as "negligence which is unusual or abnormal, or foreign to the normal or
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