D's car collided with a car driven by P. The accident was caused by a brake failure. D had no reason to know that the brakes were defective since D had her brakes overhauled by a mechanic Evanchik 3 months before the accident.
P sued D in negligence.
Trial court found for D.
CA Supreme Court reversed, remanded for finding on damages.
Can a defendant vehicle owner delegate the responsibility of making a brake repair to an independent contractor?
A D vehicle owner cannot delegate the responsibility of making a brake repair to an independent contractor.
There are several non-delegable duties such as the duty of a general contractor to construct a building safely and the duty of an independent contractor employed to do work which the employer should recognize as necessarily creating a condition involving an unreasonable risk of bodily harm to others unless special precautions are taken.
Restatement says that one who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully maintained, and who employs an independent contractor to maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in maintaining such instrumentalities as though the employer had himself done the work of maintenance.
Improperly maintained cars threaten a grave risk of serious bodily harm or death. Thus, the responsibility of minimizing that risk or compensating for the failure to do so must fall on the person who owns and operates the vehicle.
The owner can demand indemnity from the contractor as well.