10. Assume that the homeowner exercised reasonable care in hiring the repairman, that the repairman was an independent contractor, and that public policy made a homeowner's duty to keep the sidewalk safe for pedestrian a nondelegable duty. If the pedestrian brings an action against the homeowner to recover damages for the injury caused to him by the repairman's negligence, will the pedestrian prevail?

The doctrine of vicarious liability provides that in some situations, the tortious act of one person may be imputed to another because of some special relationship between the two. The latter will be held liable even though his conduct may have been blameless. A person who hires an independent contractor is generally not liable for the torts of that person. However, there are exceptions to this rule, including: (i) when the independent contractor is engaged in inherently dangerous activities, such as doing dangerous work near a public sidewalk; and (ii) when the duty is considered non-delegable for public policy reasons, such as the duty of a business to keep the premises safe for customers.

The circumstantial evidence doctrine of res ipsa loquitur («the thing speaks for itself») deals with situations where the mere fact that an injury occurred can establish or tend to establish a breach of duty. Where the facts strongly indicate that the plaintiff's injuries resulted from the defendant's negligence, the trier of fact may be permitted to infer that the defendant was probably negligent. Res ipsa loquitur requires the plaintiff to show: (i) an inference of negligence (i.e., that the accident causing the injury is the type that would not normally occur unless someone in the defendant's position was negligent); (ii) negligence attributable to the defendant (i.e., evidence that this type of accident normally happens because of negligence, such as that the instrumentality that caused the injury was in the defendant's exclusive control); and (iii) that the plaintiff is free from negligence, meaning the injury was not attributable to him.

B is correct. Although the general rule would protect the homeowner from being liable for the repairman's negligence because he was an independent contractor, there is an exception to this rule involving non-delegable duties. Where there is a non-delegable duty, such as the policy to keep the sidewalks safe in this case, the delegator/homeowner is liable for the negligence of even an independent contractor. The pedestrian will, therefore, prevail in an action against the homeowner because, even though the homeowner was not negligent, liability for the repairman remains for the non-delegable duty of protecting passerbys on the sidewalk.

A is incorrect. This answer reaches the correct answer with the wrong reasoning. The pedestrian will prevail, but not because of the doctrine of res ipsa loquitur. The facts of this case state that the repairman and not the homeowner/defendant was negligent, and that the repairman's actions caused the lumber to fall. Res ipsa is thus inapplicable because the homeowner was conclusively not negligent, so no inference as to the defendant's negligence can be drawn. Vicarious liability will be the basis for holding the homeowner liable, as explained above.

C is incorrect. Even though the repairman was an independent contractor, and the general rule severs liability between this actor and the employer, here an exception applies. The homeowner is vicariously liable for the repairment's negligence because the duty to protect the public from dangers on the sidewalk was non-delegable. Note: «Servant» historically is a term of art used to describe an employee for purposes of vicarious liability, which does not apply here, where the repairman was an independent contractor.

D is incorrect. This answer correctly states that the homeowner was not negligent, however, the homeowner is still liable for the negligence of the repairman, an independent contractor, under the exception for non-delegable duties, as explained above.