Cromwell v. A&S Constr., Inc.
| Decision Date | 10 October 2013 |
| Docket Number | No. 20110385–CA.,20110385–CA. |
| Citation | 745 Utah Adv. Rep. 14,314 P.3d 1008 |
| Parties | Michael CROMWELL, Plaintiff and Appellant, v. A & S CONSTRUCTION, INC. and Guns and Hoses, Inc., Defendants and Appellee. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Elizabeth B. Grimshaw and Aaron J. Prisbrey, for Appellant.
John H. Romney, for Appellee.
1. Judge William A. Thorne Jr. participated in and voted on this case as a regular member of the Utah Court of Appeals. He retired from the court before this decision issued.
¶ 1 Plaintiff Michael Cromwell challenges the district court's grant of summary judgment to defendant Guns and Hoses, Inc. (Guns & Hoses) on Cromwell's negligence claim. We affirm.
¶ 2 In 2006, property owners in Cedar City contracted with A & S Construction, Inc. (A & S) to build a new residence.2 A & S served as the general contractor on the project and supervised all aspects of construction, including the construction of an elevator shaft inside the residence between the basement and the top floor of the home. Before the elevator was installed, A & S subcontracted with Guns & Hoses to perform finish carpentry work on the home, including installation of doors at the access to the empty elevator shaft on the upper levels of the residence. Miguel Ramirez, the owner of Guns & Hoses, installed these doors. Three weeks after Ramirez installed the doors, Cromwell, an employee of Reber Painting, was applying putty to the trim of the doors on the second floor of the residence. When he opened the door at the elevator shaft to apply putty to the inside, he fell approximately thirty-six feet down the empty elevator shaft and was seriously injured.
¶ 3 Cromwell filed a negligence action against A & S. A & S filed a Notice of Allocation of Fault to Guns & Hoses, and the parties stipulated to Cromwell amending his complaint to add Guns & Hoses as a defendant.3 Cromwell added a cause of action for negligence against Guns & Hoses, alleging that
Guns & Hoses owed a duty of care to install doors, secure them and warn of known dangers, such as the open elevator shaft, in a reasonable fashion and in accordance with existing safety standards as it relates to the 2[nd] floor hinged door which opened onto the empty elevator shaft.
....
... Guns & Hoses breached its duty to Mr. Cromwell by failing to comply with OSHA standards and otherwise take reasonable precautions to warn and protect others on the premises of the danger posed by the hinged door to an open elevator shaft.
¶ 4 Guns & Hoses moved for summary judgment, arguing that it owed no legal duty to Cromwell because its duty was limited to installing doors leading to the empty elevator shaft and “did not extend to supervision or safety issues.” Guns & Hoses alternatively argued that even if it had a duty to protect others from the risk presented by the covered elevator shaft, it did not breach that duty because it adequately secured the doors and warned of the danger of the empty elevator shaft.
¶ 5 In opposition to Guns & Hoses' motion for summary judgment, Cromwell argued that subcontractors “owe a duty of care for the work they do on a construction project.” Cromwell also argued that disputed material facts existed regarding the timing and manner in which the doors were secured and whether they were secured at all.
¶ 6 The district court granted Guns & Hoses' motion for summary judgment, relying on the following facts that it viewed as undisputed: (1) “[Cromwell] alleges that Guns & Hoses owed a duty to secure the elevator shaft doors and warn of the danger of the elevator shaft,” (2) “Guns & Hoses secured the elevator shaft doors after installing them,” (3) “A & S confirmed that the elevator shaft doors were secured by Guns & Hoses after they were installed and before [Cromwell's] fall,” (4) “[the homeowners] also confirmed that the elevator shaft doors were secured by Guns & Hoses after they were installed and before [Cromwell's] fall.”
¶ 7 Based on these undisputed facts, the district court granted summary judgment to Guns & Hoses. The district court's summary judgment ruling was based on its determination that Guns & Hoses owed no duty to Cromwell to secure the doors, but also on its determination that, even if Guns & Hoses owed Cromwell such a duty, the undisputed facts demonstrated that Guns & Hoses did not breach that duty because it secured the doors and posted warnings. The district court certified the order as a final judgment at the request of the parties, and Cromwell appeals.
¶ 8 Cromwell argues that summary judgment was inappropriate because disputed issues of material fact existed concerning the reasonableness of Guns & Hoses' installation of the doors. Cromwell also argues that the district court failed to view the facts and reasonable inferences in the light most favorable to him as the nonmoving party. Finally, he argues that the district court erred in determining that Guns & Hoses owed him no duty.
¶ 9 “Summary judgment is appropriate only upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5, 178 P.3d 343 (citation and internal quotation marks omitted). “The question of whether a trial court properly granted summary judgment is a question of law, which we review for correctness.” Id. Similarly, whether a duty exists is a question of law, and we review the district court's determination on that point for correctness. Ottens v. McNeil, 2010 UT App 237, ¶ 23, 239 P.3d 308.
¶ 10 Cromwell challenges the district court's conclusion that Guns & Hoses owed no duty to Cromwell at the time he arrived on the job site.4 Cromwell argues that “Guns & Hoses owed a duty of care to perform the work it was hired to do in a reasonable manner.” While Cromwell appears to view the question of duty as a side issue to be “revisit[ed]” if the district court's grant of summary judgment were reversed, “without a duty, there can be no negligence as a matter of law, and summary judgment is appropriate,” see Tallman v. City of Hurricane, 1999 UT 55, ¶ 5, 985 P.2d 892 (citation and internal quotation marks omitted). Thus, our first inquiry is whether Guns & Hoses owed a duty to Cromwell at the time of his injury.
¶ 11 “The creator of an artificial condition on land may be liable to others ... for physical harm caused by its dangerous nature.” Id. ¶¶ 8–9 (adopting Restatement (Second) of Torts § 385 (1965)). Where a contractor is engaged to perform work without direct supervision and control by the owner, the contractor is responsible for preventing the risk arising out of the work, and administering and distributing it. See Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d 322. Thus, so long as the work remains in his control, a contractor “is subject to liability ‘as though he were the possessor of the land.’ ” See Gonzalez v. Russell Sorensen Constr., 2012 UT App 154, ¶ 23, 279 P.3d 422 (quoting Restatement (Second) of Torts § 384 (1965)); see also id. ¶ 30 (). Where a general contractor hires a subcontractor to perform a part of the work, the subcontractor is liable in the same manner but “for only such harm as is done by the particular work entrusted to him.” SeeRestatement (Second) of Torts § 384 cmt. d (1965).
¶ 12 Thus, a general contractor bears the risk of harm caused to others, including employees of a subcontractor, by the dangerous character of the structure being built while the work remains in the general contractor's charge. See Gonzalez, 2012 UT App 154, ¶¶ 21, 30, 279 P.3d 422 (). While no Utah case specifically addresses a subcontractor's duties to the employees of another subcontractor, we conclude that under Thompson v. Jess and section 384 of the Restatement, a subcontractor owes the same duty to employees of another subcontractor as it owes to any other person. See Thompson, 1999 UT 22, ¶ 13, 979 P.2d 322;Restatement (Second) of Torts § 384 & cmt. d; cf. Tallman, 1999 UT 55, ¶ 30, 985 P.2d 892 (). This conclusion is consistent with how other jurisdictions have addressed claims of negligence between subcontractors. See, e.g., Sarmiento v. Stubblefield's Custom Concrete, Inc., 178 Ariz. 440, 874 P.2d 997, 999 (Ariz.Ct.App.1994) (); Johnson v. A & M Custom Built Homes of West Bloomfield, LPC, 261 Mich.App. 719, 683 N.W.2d 229, 232 (2004) ; Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625, 629 (1967) ...
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