THE BLOG
09/30/2014 10:46 am ET Updated Nov 30, 2014

Is No One Legally Liable for a Defectively Installed Handicap Accessible Shower Bench?

The Tennessee Supreme Court recently declined to impose liability on either an independent contractor or a hotel owner when a defectively installed handicap accessible shower bench broke, causing injuries to a paralyzed hotel guest (Parker v. Holiday Hospitality Franchising). The independent contractor had improperly installed the bench with the improper installation covered by sheetrock. The independent contractor was not liable since a Tennessee statute of repose limits claims for negligent construction to four years from when a certificate of occupancy has been issued. The hotel owner was not liable since he had no "actual or constructive notice" of the defective condition. The manufacturer of the bench was never sued, likely because the installation instructions were not followed. Presumably the individual worker who improperly did the installation is unknown. Consequently, the injured hotel guest is unable to hold anyone legally liable for his serious injuries.

The Tennessee Supreme Court in reciting the facts noted that the guest saw that the bench supporting brackets were pulled away from the wall about an eight of an inch. He requested another room but none was available. The hotel maintenance man tightened the bracket bolts to the wall and then saw that it did not move. The guest also pushed on the bench and it "seemed strong." However, the Tennessee Supreme Court made no mention of assumption of the risk or an open and obvious danger in its opinion. To the contrary, the Court emphasized that the defective installation was hidden by a wall installed by the independent contractor.

The Tennessee Supreme Court wrote that "a property owner is not vicariously liable for injuries third parties sustain from the negligence of an independent contractor." While the Court noted that the "accepted work doctrine" and the "nondelegable duty to the public" rules might impose liability, neither applied in this case. The accepted work doctrine would transfer the negligence of an independent contractor to the premises owner, but Tennessee no longer follows this rule. The nondelegable duty rule applies when a private party assumes a duty that the government owes the public. That rule also does not apply to this case.

The Tennessee Supreme Court additionally wrote that business owners are required to exercise due care to the public (premises liability). However, that duty does not extend to conditions where no unreasonable risk would be anticipated or the risk could not be discovered with the exercise of reasonable care. The Court stated that to make the hotel owner liable in this case would "destroy the distinction the law makes between agents and independent contractors" and "transform property owners into insurers of the negligence of independent contractors." "We decline to adopt such a rule."

The Tennessee Supreme Court concluded that the hotel owner did not have notice of the defective bench. The owner did not have actual notice since he did not inspect the construction while it was in progress. He did not have constructive notice since he had never received any complaints concerning shower benches, the problem was hidden behind a wall, and visible inspections and physical pressure tests by the hotel maintenance man and the hotel guest failed to reveal any defects. Additionally, the hotel owner had no duty to inspect the independent contractor's work.

There are several forks in the road in this situation. The Tennessee Supreme Court could have concluded that the hotel maintenance man's work imposed a duty of careful work and complete inspection on the hotel owner. Precisely why were the bench brackets not tight against the wall? The Court could have applied the accepted work doctrine and transferred the negligence of the independent contractor to the hotel owner. The Court could have explored handicap accessible standards as creating a nondelegable duty of proper and safe installation. The Court could have decided that actual notice of a defect was provided to the hotel owner when it could be seen that the brackets were not tight against the wall.

The injured hotel guest could have filed suit more quickly in order to attempt to impose liability on the independent contractor. The certificate of occupancy for the hotel was issued on July 31, 2006. The hotel guest fell on May 13, 2010. The hotel guest first visited a hospital on May 14, 2010. Apparently the hotel guest discovered more serious injuries when he returned home to California. The four year statute of repose for negligent construction claims (running from July 31, 2006) apparently would not have expired at this point. The lawsuit was filed on May 11, 2011.

In any event, the initial question remains: Is no one legally liable for a defectively installed hotel handicap accessible shower bench?