§62.5A Non-Delegable Duty to the Public Exception
The Case: Parker v. Holiday Hospitality Franchising, Inc., 446 S.W.3d 341 (Tenn. 2014).
The Basic Facts: While building a hotel, independent contractor did not properly secure handicap accessible shower bench to wall and plaintiff was subsequently injured. Hotel owner had not inspected the shower bench in question during construction, and faulty installation was not visible once drywall was installed. Trial court granted summary judgment to defendant owner, “reasoning that property owners are generally not liable for an independent contractor’s negligence unless the property owner knew of and accepted defective materials or negligent work.” Plaintiff appealed, asserting in part that the nondelegable duty owed to the public exception applied.
The Bottom Line:
· “In [McHarge v. M.M. Newcomer & Co., 100 S.W. 700 (Tenn. 1907)], the store owner defendant hired an independent contractor to repair an awning that extended over Gay Street in Knoxville. As the independent contractor repaired the awning, an ‘awning roller’ fell from the building to the ground, striking and injuring a passing pedestrian. …The Court explained that the City of Knoxville, which was not a party to the lawsuit, had a duty to the public to see that the awning was properly and safely constructed and kept in good repair. The Court held that, by erecting the awning over the street, the store owner defendant has assumed all the obligations of the City of Knoxville to the public…to exercise a high degree of care and diligence in the construction, maintenance, inspection, and repair of the awning, so as to prevent it from obstructing the street, or endangering those using it. The store owner’s failure to take appropriate precautions to protect the public at all times from injury in any way growing out of its maintenance or repair, rendered the store owner liable.” 446 S.W.3d at 349 (internal citations and quotations omitted).
· “Unlike the store owner defendant in McHarge, Mr. Patel did not assume any duty a governmental entity owed to the public. He simply engaged an independent contractor to build a hotel. The undisputed facts fail to establish that Mr. Patel owed a nondelegable duty to the public which would subject him to vicarious liability for the negligence of his independent contractor.” Id. at 350.