A typical Resort or
Recreational Management Facility conducts it's business operations on several
different risk levels simultaneously. These diverse functions represent an
unusual combination of direct and contingent exposures that span the entire
spectrum of public liability.
Premises & Operations Liability
A direct primary liability exposure arises out of a premises owned or utilized
by a MANAGEMENT FACILITY, or out of operations conducted at or away from those
premises. The MANAGEMENT FACILITY is under a duty to conduct his operations with
reasonable care to avoid injury or property damage to others. Since many operations are
delegated to employees, agents or subcontractors, their negligence, if any, is imputed
to the MANAGEMENT FACILITY under the doctrine of respondeat superior (let the
superior party answer).
The MANAGEMENT FACILITY can be defined as a contractor who, for a fixed price,
undertakes to procure the performance of works for a client. If a portion of the work is
subcontracted to another party the responsibility for the performance of the work to the
client remains the same.
When subcontractors or independent contractors are used, the MANAGEMENT FACILITY is
considered to be the "prime" or "general" contractor. The
subcontractors are responsible for any injuries or property damage caused by their
negligence or negligence of their employees. This responsibility runs not only to the
general public but also to the employees of the general contractor and other
subcontractors.
The MANAGEMENT FACILITY is assumed to have general supervision over the activities of
subcontractors and is ultimately responsible for the reasonable safety of a premises or
operation. Failure to meet this duty is actionable if it results in an injury to a client
or member of the general public.
Vicarious liability may result from employer-employee relationships, principal-agent
relationships or relationships with independent contractors. The principal of vicarious
liability describes situations where the MANAGEMENT FACILITY will be held liable for
the negligent acts of independent contractors or subcontractors - even though the
MANAGEMENT FACILITY is otherwise free from all fault, did nothing to aid or encourage the
subcontractors negligence, played no part in it, or even possibly did everything possible
to prevent it.
As a general rule, a party is not normally vicariously liable for the torts of its
agent or independent contractor. This is most often explained by the observation that,
because the contractor does not control the manner in which an independent contractor does
his work it is to be regarded as the subcontractor's own enterprise.
The "general rule" relating to vicarious liability and acts by independent
contractors is nearly swallowed up by no less than twenty-one recognized exceptions to the
general rule.
The employment of an independent contractor will not insulate a MANAGEMENT FACILITY
from vicarious liability for the acts of the contractor where the MANAGEMENT FACILITY
fails to take reasonable precautions where there is a foreseeable chance of harm to
others. It is the MANAGEMENT Facility’s duty, for instance, to exercise reasonable
care to select a competent and careful contractor with the proper training, experience and
equipment for the job.
The vicarious liability of a MANAGEMENT FACILITY for the negligent acts of agents or
independent contractors is called "joint and several". A liability is joint and
several when an injured party sues one or more or the responsible parties separately or
together for injuries suffered.
No agreement generally entered into by a MANAGEMENT FACILITY with an agent or
independent contractor which attempts to secure an exemption from liability for harm
caused by the negligence of the contractor is binding on the injured third party.
