Florida Personal Injury Law: Non-Delegable Duty Creates Joint & Several Liability

joint & several.jpgBy amending §768.81 Florida Statues, the Florida Legislature eliminated, effective 2006, the application of joint and several liability in most personal injury cases. Under the joint and several doctrine, in cases involving multiple defendants each negligent defendant was wholly responsible financially for the negligence of every other defendant. This concept especially benefited plaintiffs where one or more negligent defendant did not have the financial means to satisfy its share of the damages awarded, while one or more other defendants had the means to satisfy the entire award.

The doctrine was replaced by the comparative fault doctrine. Under this doctrine, each defendant’s share of liability was limited to its allocated percentage of fault. For example, if each of three defendants was found one-third at fault, the most any one of the three would be responsible for paying is one-third of the total damage award. If the total damage award was $1,000,000, the most any one of the three defendants would have to pay is $333,333.33. If the others could not afford to pay their shares, the injured Plaintiff would simply not be fully compensated. In comparison, under the joint and several doctrine each one of the three would be liable for the full measure of damages. If, for example, one of the defendants was the Coca-Cola company and the other two were poor deadbeats without adequate insurance coverage, Coca-Cola would be on the hook for the full amount. Coca-Cola would have a right to go after the other defendants to recoup some of the money it paid.

By scuttling joint and several liability, the Republican Legislature, with the full backing of then Governor Jeb Bush, shifted the burden of loss from insurance companies and large corporations onto injured victims.

While joint and several liability does not apply in most post-April, 2006 personal injury cases, it remains a viable legal doctrine in cases where an independent contractor has breached a non-delegable duty. The most common scenario involves a property owner who hires one or more independent contractors to perform maintenance and security in and around a property, like a shopping mall. If a person rightfully on the property is injured by the negligent performance by the independent contractor, the independent contractor and the property owner are jointly and severally liable. This has long been the law in Florida:

“The law imposes on hotels, apartments, innkeepers, etc., the duty to keep their buildings, premises and appliances in a condition reasonably safe for the use of their guests, or at least those parts of the buildings and premises to which the guest are invited and may reasonably be expected to use. The duty of maintaining safe premises cannot be delegated to another.

Goldin v. Lipkind, 49 So.2d 539, 541 (Fla. 1950) (emphasis added). Moreover, this is a well-established principle of law recognized throughout the country. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 511-12 (5th ed. 1984).

“It is true, of course, that 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, whether performed by himself, an employee, or an independent contractor.” U.S. Sec. Services Corp. v. Ramada Inn, Inc., 665 So.2d 268 (Fla. App. 3 Dist. 1995). This is also the established law of Florida:

“[T]he law has always permitted a person to hire an employee or an independent contractor to perform a non-delegable duty owed by that person to third parties [i.e. the duty of a landowner to invitees to maintain its premises in a reasonably safe condition]; the law only precludes such person from escaping, by that devise, vicarious responsibility for the proper performance of that nondelegable duty.”

Mortgage Guarantee Ins. Corp. v. Stewart, 427 So.2d 776, 780 (Fla. 3d DCA), rev. denied, 271*271 436 So.2d 101 (Fla. 1983) (emphasis added).

“Holding a particular undertaking to be nondelegable means that responsibility, i.e., ultimate liability, for the proper performance of that undertaking may not be delegated. The term nondelegable does not preclude delegation of the actual performance of the [nondelegable] task. `Nondelegable’ applies to the liabilities arising from the delegated duties if breached.”

Atlantic Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So.2d 676, 679 (Fla. 3d DCA 1980).

Joint and several liability in this context has a number of positive outcomes. Since the property owner is just as liable for the independent contractor’s fault, the property owner is encouraged to see that the services are performed properly. It is a good thing when special attention is paid to the safety of others. In addition, compared to the comparative fault doctrine, joint and several liability increases the chances of an injured person being fully compensated. Finally, joint and several liability increases the plaintiff’s odds of defeating a defendant’s proposal for settlement or succeeding with his or her own.

A proposal for settlement is a legal device sometimes used to trigger an obligation on a party to pay another party’s attorney’s fees and costs. See section 768.79, Florida Statutes and Florida Rule of Civil Procedure 1.442(d). The amount owed under a PFS can be significant, often in excess of actual damages awarded. The obligation is triggered if the final judgment is less than 75% of the defendant’s PFS or more than 125% of the plaintiff’s PFS. Because of its potential in increasing the amount of a final judgment, the joint and several liability doctrine can be the deciding factor in meeting and beating a PFS.

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