Nondelegable Duty Doctrine

July 23, 2009

By: David K. Jaffe

The nondelegable duty doctrine means that the party with such a duty may not absolve itself of liability by contracting out the performance of that duty. Both the Connecticut appellate court and courts of other jurisdictions have held that the nondelegable duty doctrine means that a party may contract out the performance of a nondelegable duty, but may not contract out his ultimate legal responsibility.[1] An employer may not contract away his liability to the general public for harm caused in the performance of a nondelegable duty.[2] A landowner may contract out the performance of his non-delegable duty to an independent contractor, but he cannot contract out of his ultimate legal responsibility for the proper performance of his duty by the independent contractor; the landowner is always responsible for the proper performance of this non-delegable duty.[3] When a court speaks of a nondelegable duty under the independent contractor tort rule, the court means that a party cannot bargain away the risks of performance.[4]

It is not a necessary implication of the nondelegable duty doctrine that the contractor to whom the performance of the duty has been assigned may not, under appropriate circumstances, also owe the same duty to a party injured by its breach.[5] The nondelegable duty doctrine involves a form of vicarious liability, pursuant to which the party with the duty may be vicariously liable for the conduct of its independent contractor. That vicarious liability, however, does not necessarily preclude liability on the part of the independent contractor.[6]

It is well established that, under the general rule, an employer is not liable for the negligence of its independent contractors.[7] One exception to this general rule, however, is that the owner or occupier of premises owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons.[8] The nondelegable duty doctrine is, therefore, an exception to the rule that an employer may not be held liable for the torts of its independent contractors.

An independent contractor remains liable for his own negligence even though the law also imposes liability on the owner under the non-delegable duty rule.[9] Nondelegable duties create a form of vicarious liability.[10] Where the employer has a nondelegable duty, the employer may be vicariously liable to others for the negligent acts of the independent contractor.[11] In vicarious liability situations, the law has broadened the liability for that fault by imposing it upon an additional, albeit innocent, defendant, namely, the party that has the nondelegable duty.[12]

In Gazo v. City of Stamford,[13] the court further considered apportionment, this time with respect to vicarious liability, when it took up the issue of whether a person to whom the performance of a duty has been delegated may also be liable without violating the principles of comparative negligence. A plaintiff suffered injuries resulting from a slip and fall on an icy sidewalk in front of a bank. Defendant contractor had an obligation to maintain the sidewalk free of ice and snow pursuant to a contract with the bank. The court concluded that unless the plaintiff could show that contractor failed to exercise reasonable care when performing the duty owed, both could be liable without reviving joint and several liability inconsistent with Conn. Gen. Stat. § 52-572h(c).


[1] Gazo v. City of Stamford, 255 Conn. 245, 255 (2001).

[2] Ray v. Schneider, 16 Conn. App. 660, 665 (1988).

[3] U.S. Security Services Corp. v. Ramada Inn, Inc., 665 So. 2d 268, 270 (Fla. App. 1995).

[4] Brooks v. Hayes, 133 Wis. 2d 228, 247, 395 N.W.2d 167 (1986).

[5] See 2 Restatement (Second) of Torts § 324A (b).

[6] Gazo v. City of Stamford, 255 Conn. 245, 256 (2001).

[7] Douglass v. Peck & Lines Co., 89 Conn. 622, 627 (1915); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 71, p. 509; 41 Am. Jur. 2d, Independent Contractors § 29 (1995).

[8] 41 Am. Jur. 2d, Independent Contractors § 46; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 71.

[9] Petition of Alva S.S. Co., Ltd., 616 F.2d 605, 610 (2d Cir. 1980).

[10] W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 71, p. 511.

[11] Ray v. Schneider, 16 Conn. App. 660, 665 (1988).

[12] W. Prosser & W. Keeton (5 th Ed. 1984) § 69, p. 499.

[13] Gazo v. City of Stamford, 255 Conn. 245 (2001).