Section 5.9.2.5.2 Implied Indemnity

• Library: Construction Law Practice Manual 3rd Edition 2016

§ 5.9.2.5.2 Implied Indemnity¹²⁹

Indemnity is an obligation resting on one party to make good the loss or damage incurred by another party.¹³⁰

There are circumstances when a developer does not have a contract with the subcontractor and thus does not have an express indemnity provision. In such a situation, implied indemnity can be used. Implied indemnification occurs when two parties have a contract with no indemnification provision, but the relationship between the parties is such that the court imposes one nonetheless.¹³¹ This theory is limited and dates back nearly half a century.¹³²

In Busy Bee Buffet v. Ferrell,¹³³ a deliveryman named Ferrell injured himself when he fell into an open trap door which was created by Pastis, who was a co-tenant of the property with Busy Bee. Ferrell sued Busy Bee and Pastis. Busy Bee sought indemnity against Pastis for any liability assessed against it. The trial court granted judgment in favor of Busy Bee Buffet and its indemnification claim. The Arizona Supreme Court upheld this judgment by employing a passive versus active fault scheme to the actions of Busy Bee Buffet and Pastis. The court held:

It will be observed that the Buffet owed a positive legal duty to Ferrell to keep the passageway reasonably safe for his use in making deliveries of beverages to it. So long, however, as the trap door was closed the basement beneath the passageway constituted no actual peril whatever. It was only when the trap door was open and inadequately guarded by failure to place proper barricades on each side of the opening or something equally effective that the actual danger to Ferrell was created. The Buffet was guilty of...