Otero v. Jordon Restaurant Enterprises

• Decision Date: 22 March 1995
• Docket Number: No. 15232,15232
• Citation: 119 N.M. 721,1995 NMCA 32,895 P.2d 243
• Parties: John OTERO, Plaintiff-Appellee, v. JORDON RESTAURANT ENTERPRISES, a New Mexico Corporation, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 243

895 P.2d 243

119 N.M. 721

John OTERO, Plaintiff-Appellee, v. JORDON RESTAURANT ENTERPRISES, a New Mexico Corporation Defendant-Appellant.

No. 15232.

Court of Appeals of New Mexico.

March 22, 1995.

Certiorari Denied May 10, 1995.

[119 N.M. 722] Wycliffe V. Butler, Butler & Butler, P.A., Albuquerque, for plaintiff-appellee.

Donald C. Schutte, Schutte & Trafton, P.C., Albuquerque, for defendant-appellant.

OPINION

APODACA, Chief Judge.

This premises liability case involves the issue of an owner's liability for negligent acts committed by an independent contractor resulting in harm after completion of the work. Defendant Jordon Restaurant Enterprises (Defendant) appeals two rulings of the trial court: (1) a pre-trial grant of partial summary judgment to Plaintiff John Otero (Plaintiff), and (2) the court's refusal to give certain comparative negligence instructions to the jury. Because we determine there was no error under either issue, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant hired an independent contractor to expand the premises of its restaurant and bar. As part of the expansion project, the contractor assembled metal bleachers where patrons of the restaurant and bar could be seated to view a large-screen television. Approximately four months after the bleachers were installed, they collapsed. Plaintiff, a patron, fell and was injured. As a result of the accident, he filed suit against Defendant.

Defendant conceded in the trial court that the cause of the collapse was the contractor's faulty and negligent assembly of the bleachers. Defendant then filed a third-party complaint against the independent contractor and against the manufacturer and distributor of the bleachers. Defendant's claims against these third-party defendants are not part of this appeal.

Before trial, Plaintiff filed a motion for partial summary judgment, seeking an adjudication that Defendant was vicariously liable, or jointly and severally liable, for the contractor's negligence in assembling the bleachers. The trial court granted Plaintiff's motion, ruling that, as a matter of law, Defendant was liable for the contractor's negligence and that Defendant had a nondelegable duty to maintain safety in areas over which it had control. The trial court based its ruling on this Court's decision in Broome v. Byrd, 113 N.M. 38, 822 P.2d 677 (Ct.App.1991).

At trial, Defendant requested jury instructions that would have allowed the jury to compare the contractor's negligence with the alleged negligence of the City of Albuquerque (the City), which issued the construction permit for the expansion work, and the alleged negligence of the architect who drew up the plans for the project. The trial court refused those instructions. The jury returned a verdict in favor of Plaintiff for $47,000 and against Defendant and the contractor, jointly and severally.

II. DISCUSSION

A. Adoption of Restatement Section 422(b)

In Broome, this Court adopted Restatement (Second) of Torts Section 422(a) (1965) (the Restatement). There, an employee of a tenant in a commercial building tripped and fell over a drop cloth. The drop cloth had been left outside the door of the tenant's business by an employee of the independent contractor painter hired by the building owner. Broome, 113 N.M. at 39, 822 P.2d at 678. The employee sued the building owner for negligence, and the trial court entered summary judgment for the building owner. Id. This Court reversed, holding 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 retained control. Id. at 41, 822 P.2d at 680. Generally, an employer is not vicariously liable for the negligence of an independent contractor, but this general rule of nonliability has numerous exceptions. Id. at 39, 822 P.2d at 681.

Although Broome is somewhat factually similar to the facts in this appeal, it is not exactly on point. Broome differs because there, the injury occurred while the construction project was in progress and resulted from alleged negligence in keeping the construction area safe. In this case, on the other hand, the injury occurred after the project was completed and resulted from the independent contractor's defective performance of the work that left the structure in an unsafe condition. Under such circumstances, we conclude that the owner of the premises is liable to the same extent as if the owner had himself defectively performed the work. In so holding, we adopt Section 422(b) of the Restatement.

Section 422, in imposing liability on the owner of premises, states that an owner:

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

....

(b) after he has resumed possession of the land upon its completion.

Thus, Section 422(b) "makes it impossible for a possessor of land to escape liability for the non-performance of his duty to maintain his land in safe condition, so long as he is in possession of it, by delegating the task of doing the work necessary to the performance of that duty to an independent contractor." Restatement Sec. 422 cmt. e. Liability is imposed on the owner of the premises despite the fact that the owner was not personally at fault in creating the unsafe condition.

We realize that in cases like Broome, where the owner has retained possession of the premises during the work, the owner is in the position to prevent injuries because the owner or its agents are present while the independent contractor's work is ongoing and should be aware of any dangerous condition that develops. Such may or may not be the case in situations where the work has already been completed. Nevertheless, the policy reasons for imposing liability on the owner articulated in Broome apply with equal force to cases such as this appeal, a case involving a latent defect. When adopting Section 422(a) in Broome, this Court reasoned that the owner obtains the benefit of the contractor's work and that an owner can insure against risks and incorporate those expenses into its overhead if the premises are business premises. Broome, 113 N.M. at 41, 822 P.2d at 680. We also recognized that the owner is in a position to prevent or minimize risks by hiring a financially responsible contractor, by making arrangements for indemnification from the contractor, and by requiring the contractor to follow safety procedures and remedy dangerous conditions. Id.; see Ft. Lowell-NSS Ltd. Partnership v. Kelly, 166 Ariz. 96, 800 P.2d 962, 970-71 (1990) (en banc) (discussing policy rationales behind Section 422(b)); Patton v. Spa Lady, Inc., 772 P.2d 1082, 1084 (Alaska 1989) (same). We consider these policy reasons equally applicable here.

We note that other jurisdictions have also held that "a possessor of land is accountable for the negligent failure of an independent contractor to put or maintain buildings or structures in ... reasonably safe condition." Kelly, 800 P.2d at 970 (citing cases); but see Mai Kai, Inc. v. Colucci, 205 So.2d 291, 293 (Fla.1967) (holding that a landowner is not absolutely liable for an independent contractor's negligence and that he or she has only the duty to exercise reasonable care to prevent or correct an unsafe condition).

In adopting Section 422(b) of the Restatement, we necessarily reject Defendant's argument that an owner's liability should be limited to situations in which the owner himself is at fault.

B. Collateral Negligence

Defendant additionally argues that, despite Section 422(b), it should not be held liable for the contractor's negligence because such negligence was only "collateral negligence." See Broome, 113 N.M. at 41-43, 822 P.2d at 680-82 (discussing concept of collateral negligence). We disagree with Defendant's contention.

The collateral negligence doctrine is an exception to an exception. That is, the general rule is that an employer is not liable for the negligence of an independent contractor. Broome, 113 N.M. at 39, 822 P.2d at 678. This rule, however, as we have previously noted, is riddled with exceptions, one of which is the one established in this case--that an owner of property is liable for the negligence of an independent contractor in building or making repairs to structures on that property, once the owner resumes possession. In turn, those exceptions are also subject to an exception--that the owner is not liable for collateral negligence of the contractor or the contractor's employees. See Restatement Sec. 422 cmt. e; Restatement Sec. 426. We must therefore determine the meaning of the term "collateral negligence."

The concept of "collateral negligence" is set out in Section 426 of the Restatement. Section 426 states:

[A]n 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.

Defendant interprets the collateral negligence concept broadly, arguing that a question of fact exists as to whether the contractor's failure to assemble the bleachers correctly was unusual negligence that could not be anticipated. We agree with Defendant that the question of whether negligence is collateral is often not easy to answer and is usually an issue of fact. See Broome, 113 N.M. at 42, 822 P.2d at 681. In this case,...