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HERE AN INDEPENDENT CLEANING CONTRACTOR APPARENTLY CREATED A DANGEROUS FLOOR CONDITION WHICH INJURED PLAINTIFF; ALTHOUGH THE COMPANY WHICH HIRED THE INDEPENDENT CONTRACTOR WAS NOT LIABLE FOR THE INDEPENDENT CONTRACTOR’S NEGLIGENCE, MARSHALLS, THE RETAIL STORE WHERE THE INJURY OCCURRED, COULD BE VICARIOUSLY LIABLE FOR THE INDEPENDENT CONTRACTOR’S NEGLIGENCE BECAUSE MARSHALLS HAS A NONDELGABLE DUTY TO KEEP THE PUBLIC AREAS OF ITS STORE SAFE; WHETEHER MARSHALLS HAD NOTICE OF THE DANGEROUS CONDITION IS NOT AN ISSUE WHERE VICARIOUS LIABILITY MAY APPLY (FIRST DEPT).

The First Department noted that Marshall’s had a nondelegable duty to keep the public area of its store safe. The underlying fact of the case are not described but plaintiff was apparently injured because of the negligence of defendant cleaning subcontractor. The defendant which hired the subcontractor was not liable because the subcontractor was retained as an independent contractor. But the store was liable for the subcontractor’s negligence based upon its nondelegable duty to keep public areas safe (notice of the dangerous condition is not an issue):

The general rule is that a party who retains an independent contractor is not liable for that contractor’s negligent acts … . The record establishes that neither USM [the company which hired the independent contractor] nor Marshalls exercised control over how [the independent contractor] performed its cleaning tasks at the Marshalls store where plaintiff was injured, and that USM was not even present at the location at the time of the accident. * * *

… [T]he court should not have granted summary judgment dismissing the complaint as against Marshalls, which had a nondelegable duty to maintain the public area of its store in a reasonably safe condition. Therefore, Marshalls can be held vicariously liable for any negligence on the part of the subcontractor that caused the floor to become unsafe … . In light of the foregoing, we find it unnecessary to consider whether Marshalls established lack of notice of the hazardous condition. Jones v Marshalls, 2026 NY Slip Op 00087, First Dept 1-13-26

Practice Point: Here a retail store, Marshall’s could be vicariously liable for a slip and fall caused by the negligence of an independent cleaning contractor. The store has a nondelegable duty to keep its public areas safe. The question whether Marshall’s had notice of the dangerous condition is irrelevant where liability is vicarious. [Why is a retail store’s notice of the dangerous condition a crucial issue where no independent contractor is involved, but irrelevant when the cleaning is done by an independent contractor?]

 

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