Broome v. Byrd

• Decision Date: 08 November 1991
• Docket Number: No. 11498,11498
• Citation: 822 P.2d 677,1991 NMCA 126,113 N.M. 38
• Parties: Oriene BROOME, Plaintiff-Appellant, v. Charles BYRD, Defendant-Appellee, Steve Spina and Star D. Spina, Defendants.
• Court: Court of Appeals of New Mexico

Page 677

822 P.2d 677

113 N.M. 38

Oriene BROOME, Plaintiff-Appellant, v. Charles BYRD, Defendant-Appellee Steve Spina and Star D. Spina, Defendants.

No. 11498.

Court of Appeals of New Mexico.

Nov. 8, 1991.

[113 NM 39] John R. Gerbracht, Socorro, for plaintiff-appellant.

Frank N. Chavez, Campbell, Reeves, Chavez & Acosta, P.A., Las Cruces, for defendant-appellee.

OPINION

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 Sec. 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. Budagher v. Amrep Corp., 97 N.M. 116, 637 P.2d 547 (1981) (citing Restatement Secs. 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., Mitchell v. C & H Transp. Co., 90 N.M. 471, 565 P.2d 342 (1977); Edwards v. Ross, 72 N.M. 38, 380 P.2d 188 (1963). 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. Milbrand 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 gravel 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.Civ.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. Milbrand 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, " '[w]hen 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 Sec. 63, at 410-12 (4th ed. 1971)). See generally 49 Am.Jur.2d Landlord and Tenant Sec. 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 exist. 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 City of Albuquerque v. Redding, 93 N.M. 757, 605 P.2d 1156 (1980); Sheraden v. Black, 107 N.M. 76, 752 P.2d 791 (Ct.App.1988).

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 condition 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.; Bober v. New...