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If It Is Broke, Don't Delegate

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

Even after our little spigot fiasco, my father and I are speaking again. In fact, it did not take long. We both bonded over the fact that later that night, my wife and I walked out of the George Clooney movie, the Descendants. My wife and I both were bored out of our minds and had little empathy for a guy who owned all of Hawaii. I mean, really? I'm supposed to feel sorry for this guy!? Dad, being generally anti-Hollywood applauded our decision to vacate the movie theater in favor of the bar next door.

We got to talking, and we agreed that in the future, it would be best if I not ask him to do repairs on our house. It's not really something I should delegate to him. We decided on the McCarthy "non-delegable duty of repairs” rule - I must do my own repairs.

By operation of law in California, a landlord also has a non-delegable duty regarding repairs. If the negligent – grossly negligent one might argue – repairs my father attempted were on a tenant's dwelling that I rented out, I still would be liable for any injuries it caused. So if the tenant got hurt from this negligent repair, they could still sue me.

Landlord RepairA landlord cannot escape liability for his repair duties by having someone else do the repairs. This duty to repair is "non-delegable." Thus when a landlord hires a plumber, or other handyman to do a repair, if the plumber or handyman does not do it correctly, and an injury results, the landlord is still liable. Some examples of cases which held the duty to repair as non-delegable, and exposed the landlord to liability include:

  • Sink in a school bathroom
  • Water heater
  • Roof
  • Elevators
  • Proper waxing of floors

Thus when a landlord hires a subcontractor in California to perform repairs on these or other fixtures, but does not repair them correctly, liability will attach for any later injuries.

The landlord certainly can seek redress from the subcontractor. If the plumber messes up the repair and injury results, when the landlord gets sued, he can sue the plumber (full employment of attorneys act, its true).

In many cases, the contract between the landlord and the independent contractor should cover such instances. It should spell out – expressly – who is responsible for what and that the independent contractor will be responsible to hold the landlord harmless from any suits. We'll talk about contractual provisions with respect to some of these duties in later posts.

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submission do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

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