Chesin Const. Co. v. Epstein

• Decision Date: 23 October 1968
• Docket Number: CA-CIV,No. 2,2
• Parties: CHESIN CONSTRUCTION CO., Inc., an Arizona corporation, Appellant, v. Albert EPSTEIN, Appellee. 553.
• Court: Arizona Court of Appeals

Page 11

446 P.2d 11

8 Ariz.App. 312

CHESIN CONSTRUCTION CO., Inc., an Arizona corporation, Appellant, v. Albert EPSTEIN, Appellee.

No. 2 CA-CIV 553.

Court of Appeals of Arizona.

Oct. 23, 1968.

Rehearing Denied Nov. 22, 1968.

Review Denied Dec. 24, 1968.

Lesher, Scruggs, Rucker, Kimble & Lindamood, by Robert O. Lesher, Tucson, for appellant.

Quigley & Lamont, by Daniel K. Lamont, Tucson, for appellee.

MOLLOY, Judge.

This litigation arises out of an accident in the construction industry. It raises the question of whether a general contractor is liable for injuries to an employee of a subcontractor caused by improper work procedures practiced by the subcontractor when the only fault of the general contractor was failure to properly supervise.

The job in question was a commercial building being built under contract with the owner by the defendant Chesin Construction Company. Chesin had subcontracted substantially all of the work to various specialty contractors. Among the twelve subcontracts was a lump-sum contract for carpentry labor entered into between Chesin and Steve Demenge, who was the employer of the plaintiff Epstein.

Under the written subcontract, all work was to be performed under the 'direct supervision' of Chesin but the subcontractor was to '* * * assume full responsibility for the proper location of the work and performance thereof, and shall at all times maintain adequate and competent supervision on the project.' The subcontractor was to provide his own tools and equipment, and to carry Workmen's Compensation Insurance on all of his employees. An additional provision on safety measures reads:

'During the course of construction, Sub-Contractor shall be responsible to see thta all safety measures shall be employed to guard against injury to persons or property on the premises.'

Testimony at the trial indicated that Chesin's supervisory employees considered that they had the authority to stop the work of the subcontractors if they observed any dangerous practices being followed. A Chesin supervisory employee opined that 'all superintendents look after the overall safety of a job.' The superintendent had, according to this same witness, the authority '* * * to direct the subcontractors in the order of the performance of their work.'

The plaintiff Epstein was a journeyman carpenter, who, together with three other employees of Demenge, and Demenge himself, was employed on the day of the accident in installing certain prefabricated wooden trusses which were to form the skeletal structure for the roof of the building. These trusses were designed to span the 40-foot width of the structure. Each truss was in the shape of an isosceles triangle with the base being 40-feet long and the two equilateral sides coming together in the center at three feet and nine inches above the base, thus creating the supporting structure for a two-pitched roof sloping each way from the center. These trusses were constructed of lumber with a thickness of one and five-eighths inches, and in their overall length were somewhat flexible until secured in place by appropriate bracing.

The trusses were being set, according to plans, at two-foot intervals along the length of the building and about thirty of them had been set in place when the accident occurred. As each truss was set in place, it was fastened at its base to a wood plate running along the top of the wall on each side and the tops of each truss were joined together with a 'ribbon' of one-inch lumber nailed into each truss by one eight-penny nail. This was temporary construction bracing which would be removed when the permanent bracing called for by the plans was installed. The installation of this 'ribbon' material was the responsibility of the plaintiff Epstein. While he was in the center of one of the trusses performing this work, one of the trusses fell over and caused a domino effect on a number of the other trusses. At least two of the trusses fell to the cement floor and six or more of the trusses inverted and were hanging upside down from the walls. Epstein was seriously injured and a substantial verdict in his favor was rendered in the lower court against Chesin, from which an appeal is here taken.

There is no evidence in the record that Chesin, through its employees, interfered in any manner with the work of the carpentry subcontractor, or, gave the subcontractor instruction how to install these braces, or that it failed in any way in its contractual obligation to provide suitable material for the carpentry work. Neither is there any showing that this accident resulted from a scheduling of work by Chesin nor by reason of any other affirmative action taken by Chesin or any of the other subcontractors under its supervision. The sole contention of liability is based upon the failure of Chesin to properly supervise and to prevent the particular method used by the carpentry subcontractor in the installation of these trusses.

There is ample evidence in the record, though it is disputed, that the method used in bracing the trusses during construction was inadequate and not in accordance with standard practices. Additionally, a journeyman carpenter who was employed by Chesin at the time of this accident as its superintendent testified that he was aware of the method being used to brace these trusses during construction and that, in his opinion, the bracing was 'inadequate' and 'unsafe.' At the same time, however, the superintendent refused to characterize the situation as 'dangerous' and expressed the opinion that though he might have done the work in a different manner, he did not consider that he had authority to order the carpentry subcontractor to install additional braces. The carpentry subcontractor testified that, if the superintendent had ordered him to use additional bracing in this installation, he would not have done so because the superintendent's authority was limited to directing him to comply with plans and specifications. The plans did not specify what type of construction bracing would be used. The carpentry subcontractor blamed the accident on the plaintiff's failure to nail the top 'ribbon' properly.

Additionally supportive of the verdict is testimony of Chesin's superintendent that he overheard the plaintiff request additional bracing on the trusses, which request was refused or ignored by the carpentry foreman. The plaintiff himself testified as to such a request on two occasions during the installation, which request in each case was directed to the carpentry foreman who had responded that additional bracing was not needed.

The plaintiff has not contested that the contract between Chesin and Demenge created an independent contractor status, but the contention is advanced that Chesin retained sufficient control over this work so that a jury's verdict of liability must be upheld. The principal reliance of the plaintiff is upon the Restatement (Second) of Torts § 414:

'One who entrusts work to an independent contractor, but who retains The control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.' (Emphasis added)

Restatement (Second) of Torts § 414, at 387.

For reversal, the appellant has advanced arguments revolving around statutory provisions pertaining to the Workmen's Compensation Act ¹ and the contention that there is insufficient evidence of control over the work of the subcontractor to sustain a verdict against the general contractor. We consider the latter contention first because we consider it dispositive.

Generally, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the subcontractor. McGuire v. Valley National Bank of Phoenix, 94 Ariz. 50, 381 P.2d 588 (1963); Restatement (Second) of Torts § 409, at 370. There are several well-recognized exceptions to this rule and we are here concerned with the exception pertaining to retained control.

Though the written contract is not conclusive as between these parties, Arizona-Hercules Copper Co. v. Crenshaw, 21 Ariz. 15, 184 P. 996 (1919), we first examine it to determine whether it provides evidence of retained control sufficient to impose liability. The provision that '(a)ll work to be completed * * * shall be done under direct supervision of Contractor's representative * * *' is the only one in the contract granting a control, the non-exercise of which may have had a causal relationship to this accident.

It is first to be noted that the control retained by this language, whatever it may be, pertains to 'all' phases of the work, not 'any part of the work.' If the language is given such construction, so as to vest in the contractor the authority to control the methods to be used in obtaining results, one of the appellant's statutory arguments comes into play, for A.R.S. § 23--902, subsec. B provides:

'B. When an employer procures work to be done for him by a contractor over whose work he retains supervision or control, and such work is a part or process in the trade or business of the employer, then such contractors and the persons employed by him, and his subcontractor and persons employed by the sub-contractor, are, within the meaning of this section, employees of the original employer.'

And, A.R.S. § 23--1022, subsec. A provides, in part:

'The right to recover compensation pursuant to the provisions of this chapter for injuries sustained by an employee shall be the exclusive remedy against the employer * * *'

Our Supreme Court has regarded immunities granted by the Workmen's Compensation Act to be destructive of the 'jurisdiction' of the superior court in a personal injury case. S. H. Kress & Co. v. Superior Court of Maricopa County, 66 Ariz. 67, 72, 182 P.2d 931, 934 (1947), and see State ex rel. Industrial Commission v....