Ridgeway Mall: Snow, Independent Contractors, and Indemnity
Ridgeway Property Management owns a 40-unit strip mall. It contracts with ClearPath Snow Services, an independent contractor, to plow and salt the lot within four hours of any accumulation over two inches. The agreement requires ClearPath to indemnify Ridgeway for "all claims arising out of the performance of the work" and to name Ridgeway as an additional insured. Overnight on January 9, six inches fell. ClearPath's driver salted only the front row. At 9:15 a.m., a tenant, Ms. Okafor, fell on ice in the rear row and fractured her wrist, incurring $38,000 in medical bills and $12,000 in lost wages. Ridgeway had received no complaints about the rear row; it snowed again at 11 a.m. and the lot was cleared by noon. ClearPath carries a $1 million CGL policy.
1. Does Ridgeway owe Okafor a duty of care independent of ClearPath's negligence? Identify the theory and the facts a court would weigh.
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Yes. Premises liability is a nondelegable duty, so hiring a contractor does not transfer it.
Ridgeway owes invitees a personal duty to exercise reasonable care to keep the common areas safe. The two live issues are notice and the scope of what Ridgeway reasonably delegated.
- Notice. Six inches fell overnight and the contract gave ClearPath a four-hour performance window. By 9:15 a.m. the window was still running, but an untreated rear row after a storm of that size is enough for a jury to find constructive notice. The absence of prior complaints goes to comparative fault, not to the existence of a duty.
- Observable deviation. The driver treated only the front row. That is a discrepancy an owner could see; a reasonable inspection regime would have caught it. Ridgeway's best position is that it reasonably relied on a specialist with a written service standard - a defense that can reduce its share of fault but rarely eliminates the duty entirely.
- Hiring. Ridgeway's cleanest, narrowest exposure is negligent hiring or retention; if ClearPath was licensed and insured, that claim usually fails.
The practical consequence: Okafor can sue both, and Ridgeway cannot point at ClearPath and walk away.
2. If the jury assigns Okafor 10% fault and ClearPath 90%, what does the indemnity clause actually deliver to Ridgeway, and what should you flag before relying on it?
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A broad indemnity clause is not self-executing; read the words, the statute, and the fault allocation together.
- Okafor's fault. Under a modified comparative-fault rule, her 10% reduces her recovery by 10% (or under a 50/51 rule, does not bar it). That happens before indemnity is analyzed.
- What the clause reaches. "All claims arising out of the performance of the work" is broad, but in most states an indemnitee's own negligence is indemnified only when the contract says so in clear and unequivocal terms. A generic "arising out of" clause frequently survives only as to the indemnitor's own negligence. If Ridgeway is found independently negligent, the clause may not shift that share.
- Anti-indemnity statutes. Many states void construction indemnity for the indemnitee's sole negligence, and several void it for any negligence. Confirm where the work was performed before promising the client a recovery.
- Joint and several liability. If the jurisdiction allows joint and several liability without reallocation, Ridgeway could be collectible for ClearPath's share and would then need indemnity or contribution to recover it - which puts the clause's enforceability squarely at issue.
The clause is a recovery tool against ClearPath, not a defense to Okafor's claim.
3. What was the significance of the additional insured requirement, and what should have been verified that the file apparently does not show?
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Additional insured status converts a contract right into a carrier obligation - but only as far as the endorsement goes.
If ClearPath had actually added Ridgeway, Ridgeway would get a direct defense and indemnity from ClearPath's carrier, which is faster and more certain than suing ClearPath on the contract.
What to verify:
- The endorsement, not the promise. The correct form must be attached and scheduled: a CG 20 10 or blanket CG 20 33 covers ongoing operations only and grants status only for liability caused in whole or in part by ClearPath's acts or omissions. Ridgeway's own sole negligence falls outside that grant. If Ridgeway wanted coverage for its own exposure, a broader form was needed.
- The certificate. The certificate is informational. Its disclaimer language makes clear it confers no rights, and it does not amend the policy. The policy form controls.
- Ancillary terms. "Primary and non-contributory" and waiver of subrogation are separate endorsements; neither appears in the contract here, and neither is implied.
Here the AI step appears to have been missed altogether, so Ridgeway is left with a contractual claim against a snow contractor and its own carrier.