The “nondelegable duty” exception relates to the “direct liability” exception, but broadens the scope beyond contractual obligations.  A contractor can be subject to liability when an injury is the result of a nondelegable duty:

A nondelegable duty means that an employer or an independent contractor, by assigning work consequent to a duty, is not relieved from liability arising from the delegated duties negligently performed. Dellinger v. Omaha Pub. Power Dist., 9 Neb. App. 307 (2000), citing Parrish v. Omaha Pub. Power Dist., 242 Neb. 783 (1993).

The nondelegable duty exception to the general rule is based upon the theory that certain responsibilities of a principal are so important that the principal should not be permitted to bargain away the risks of performance. While a safety role undertaken in a contract and the safety role of an individual in control of a construction site are nondelegable duties, nondelegable duties also include:

  • A duty imposed by statute or rule of law
  • A duty to take precautions against inherently dangerous conditions involved in work entrusted to a contractor

The duty to take precautions against inherently dangerous conditions involved in work delegated to an independent contractor is a recurring theme in Nebraska case law. It is part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas that create a high degree of risk to a significant number of workmen. Simon v. Omaha P. P. Dist., 189 Neb. 183 (1972). If a general contractor hires an independent contractor to perform work that the general contractor should recognize as likely to create a peculiar risk of harm to others unless special precautions are taken, the general contractor may be liable for physical harm caused to employees of the subcontractor if the general contractor fails to exercise reasonable care to take such precautions, even though the general contractor has provided, in the contract or otherwise, that the subcontractor be responsible for such precautions.

A “peculiar risk” is distinguished from the common risks to which persons in general are typically subjected. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions. Nebraska courts have held that the following types of work demonstrate peculiar risks:

Steel construction work (Parrish v. Omaha Pub. Power Dist., 242 Neb. 783 (1993)), painting the inside of an underground tank creating highly combustible paint fumes (Anderson v. Nashua Corp., 246 Neb. 420 (1994)), and steamfitter work near the opening on a floor deck that exposed vertical reinforcing rods (Simon v. Omaha P. P. Dist., 189 Neb. 183 (1972)). When work involves peculiar risks, the duty to take precautions is nondelegable, and a general contractor may be liable for the negligence of a subcontractor when injury results from the general contractor’s failure to ensure that necessary precautions are taken.

Thanks to Bradford S. Purcell, Purcell & Wardrope Chtd. for the initial outline of these concepts in a presentation based on Illinois law.