Unlike strict liability, a nondelegable duty operates, not as a substitute for liability based on negligence, but to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm and who may therefore properly be held liable for the negligence of his agent, whether his agent was an employee or an independent contractor.
Plaintiff brought an action to recover damages for injuries to her person and property incurred in an automobile accident caused by brake failure on defendant's car. The trial court denied plaintiff's motion for judgment notwithstanding the verdict on the issue of liability. The court reversed, noting that defendant's failure to comply with the provisions of the California Vehicle Code gave rise to a presumption of negligence that she could rebut with proof that she did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.
Should the defendant be absolved from liability due to the damage caused by the failure of her brakes despite having proof that she was not negligent?
Section 423 of the Restatement Second of Torts provides 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." Section 424 provides that "One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions." Both of these sections point to a nondelegable duty in this case. The statutory provisions regulating the maintenance and equipment of automobiles constitute express legislative recognition of the fact that improperly maintained motor vehicles threaten "a grave risk of serious bodily harm or death." The responsibility for minimizing that risk or compensating for the failure to do so properly rests with the person who owns and operates the vehicle. He is the party primarily to be benefited by its use; he selects the contractor and is free to insist upon one who is financially responsible and to demand indemnity from him; the cost of his liability insurance that distributes the risk is properly attributable to his activities; and the discharge of the duty to exercise reasonable care in the maintenance of his vehicle is of the utmost importance to the public.