NON-DELEGABLE DUTY

Personal injury litigation, in general, is a minefield of laws and procedures. Trial attorneys must not only have the legal and procedural capacity, but also must have the requisite trial skills in order to achieve a successful outcome for their clients. One component for success is analyzing each possible defendant and understanding each defendant’s liability.

When addressing potential defendants, one analysis is whether the breach of standard of care was one of a non-delegable duty. In general, a non-delegable duty is an obligation that cannot be outsourced to a third party according to the terms of a contract. As an example, the safety of the employees is the responsibility of the employer even thought a third party may be hired to monitor compliance with safety standards.

The issue of a non-delegable duty and a plaintiff’s ability to hold separate defendants responsible was recently addressed by the Florida’s 4th District Court of Appeal. In the case of Pembroke Lakes Mall v. McGruber, 39 Fla. L. Weekly D445 (Fla. 4th DCA February 26, 2014) the plaintiff slipped and fell at the Pembroke Lakes mall and suffered substantial injuries. The case proceeded to trial, and the plaintiff prevailed. However, an appeal was taken because the trial court erred in holding the mall responsible for the negligence attributed to the co-defendant maintenance company.

The 4th DCA held that F.S. 768.0710 does impose a non-delegable duty of care on business owners to maintain their premises in a reasonably safe condition for invitees. It explained that the plaintiff properly alleged a non-delegable duty, by making allegations against the owner and the independent contractor. The appellate court held that a breach of a non-delegable duty is a form of direct liability, in which a business owner may be liable to the plaintiff for negligently failing to take reasonable efforts to maintain the premises in a safe condition.

This recent case illustrates the importance of addressing all potential defendants and a trial lawyer’s ability to secure liability through legal and procedural efforts. Civil litigation is a minefield and it is always recommend that you seek the assistance of an attorney if you have been the victim of another’s negligence.

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