Nondelegable Duties

Posted Friday, December 16, 2016 by Ed Harper

Nondelegable Duties

Washington Pattern Instruction (WPI) 12.09 states the following: “(Fill in person or entity) is not relieved of its duty to (particular duty) by delegating or seeking to delegate that duty to another person or entity.” In the case of a business owner who hired a cleaning company to wax their floors, and if the floors were made too slippery, the business owner is not able to delegate the responsibility they owe to their invitee/customer. For example, it could read like this: “Acme Corp. is not relieved of its duty to provide a reasonably safe premises (having safe non-slippery floors) by delegating or seeking to delegate that duty to another person or entity.”

This jury instruction is for the purpose of articulating the possible factors necessary to obtain a finding of negligence. As former US President Harry S. Truman stated “The buck stops here.” Or in other words, one cannot shirk their responsibility to do or not do something.

Thus, this is also helpful to force the duty upon the defendant that this is a non delegable duty – something that cannot be delegated to someone else. In legal terms, this is called vicarious liability or being responsible for the actions of another. As Black’s Law Dictionary defines Vicarious Liability as “indirect legal responsibility”. Typically, it is how employers are found responsible for the actions of their employees.

The jury instruction committee in Washington has held this instruction should be used when dealing with a case involving subcontracted work is being performed. The jury is to be informed the duty to do something or not do something cannot be passed on to another. Jurors could be misled that the duty is passed on to the subcontractor, when that is not possible – either due to statute, regulation, common law, contract or franchise. Prosser and Keeton on the Law of Torts, Section 71, at 511-12 (5th ed. 1984).

But negligence against one who may not have been involved in the actual motor vehicle collision or wrongful death or premises liability accident may not seem fair or just. However, as Prosser points out further “…the responsibility is so important to the community that the employer should not be permitted to transfer it to another.” Id. at 512. This instruction points out to the jury the need to assign responsibility on those who are acting as principals or supervisors for the one who is acting as an agent or employee. The Latin term is respondeat superior. This means a person in charge is found to be responsible because of their position of having control over another.

As the courts have articulated “nondelegable” is a “formidable word.” And should be used with caution. See Kelley v. Great Northern Railway Co. 59 Wn.2d 894, 904-05, 371 P.2d 528 (1962).

In Kelley, an employee was injured due to certain materials used in a cleaning operation while working for the Great Northern Railway. The injury was tried to a jury and the railroad objected to the use of this instruction. The instruction informed the jury of the nondelegable duty to exercise reasonable care to furnish its employees a reasonably safe place in which to work. In short, the railroad did not object to the instruction, just the usage of the word “nondelegable”. The court agreed with the railroad stating “We agree that it is a ‘formidable’ word, and that it was not necessary to use it to adequately instruct the jury. However, we are satisfied it’s use did not infect the verdict rendered with prejudicial error.”

This points out the fact that an appellate court can find an instruction improperly given, (because here there was no issue of having the work subcontracted out) but then conclude the error was harmless, not having an effect on the verdict. This is known as a harmless error, but an error nevertheless.

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