Nondelegable Duty Doctrine
The recent Fourth District Court of Appeal decision, Publix Super Markets, Inc. v. Safonte, 49 Fla.L.Weekly D1337a (Fla. 4thDCA 2024), discussed what is known as the nondelegable duty doctrine:
A business establishment owes a non-delegable duty to an invitee “to maintain the premises in a safe condition.” Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 431 (Fla. 4th DCA 2014). “[A] breach of [this] 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.” Id. Thus, a business establishment is “directly liable to an injured invitee if reasonable efforts are not made to” comply with its duty of care. Id.
“The non-delegable duty doctrine represents a narrow exception to the rule that an ‘employer’ who retains an independent contractor is not liable for the negligent acts of that contractor.” M.S. v. Nova Se. Univ. Inc., 881 So. 2d 614, 620 (Fla. 4th DCA 2004). “Where there is a non-delegable duty, the employer hiring an independent contractor to perform services encompassed within that duty is vicariously liable when those services are performed negligently.” Id.
Publix Super Markets, supra.
In this case, the issue on appeal was whether an invitee was hired or retained by Publix to perform Publix’s nondelegable duty to maintain the premises in a safe condition. The invitee, in this case, was a person that completed a delivery for a contractor performing repairs at Publix. Afterwards, the invitee went shopping and yogurt slipped out of his cart and spilled on the floor. The plaintiff slipped on the spilled yogurt and sued Publix. Publix claimed the invitee, not it, was liable in negligence. The plaintiff argued Publix should be jointly and severally liable for the invitee’s negligence because Publix owed a nondelegable duty. The appellate court disagreed (despite the trial court initially agreeing):
Here, Publix cannot be held liable for the invitee’s negligence because Publix never hired or retained the invitee to perform its duty of maintaining the premises in a safe condition for its patrons.
While the invitee initially came to Publix to deliver an item to a contractor conducting repairs at the supermarket, the invitee was never hired or retained to assume Publix’s duty to maintain any of its premises, nor was he ever instructed or directed by Publix to maintain any of its premises during his visit to Publix. Rather, after his delivery, he simply began shopping in his personal capacity and was merely a customer with no responsibility to maintain Publix’s premises at the time of the spill.
Therefore, the non-delegable duty doctrine does not apply. Accordingly, Publix cannot be held liable for the invitee’s negligence.
Publix Super Markets, supra.
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