Conover v. Northern States Power Co.
| Decision Date | 17 December 1981 |
| Docket Number | No. 51529.,51529. |
| Citation | 313 NW 2d 397 |
| Parties | John CONOVER, Appellant, v. NORTHERN STATES POWER COMPANY, Respondent. |
| Court | Minnesota Supreme Court |
Dosland, Dosland & Nordhougen and J. P. Dosland, Moorhead, for appellant.
Jardine, Logan & O'Brien, Donald M. Jardine and Kent F. Charpentier, St. Paul, for respondent.
Heard, considered and decided by the court en banc.
In this case we consider the duty of care owed by one who possesses land to an employee of an independent contractor hired by the landowner. The trial court set aside a verdict for the plaintiff employee, holding the landowner-employer was not liable to the independent contractor's employee as a matter of law. We reverse the judgment notwithstanding the verdict, and we affirm the conditional order for a new trial but only as to liability.
Plaintiff-appellant John Conover was injured on August 12, 1977, while working on a powerline owned and operated by defendant-respondent Northern States Power Company (NSP). Conover was an employee of Donovan Construction Company (Donovan), an independent contractor hired by NSP to move some secondary lines from old poles to new, taller poles. Conover was on one of the old poles when it broke at its base and he fell to the ground. He received workers' compensation benefits from his employer, Donovan, and then brought this third-party action against NSP pursuant to Minn.Stat. § 176.061, subd. 5 (1980). Donovan was not made a party to the action.
The trial court refused to give plaintiff's requested instructions on the duty of care owed by a possessor of land and by an employer of an independent contractor and instead submitted the case on a general instruction defining negligence. The jury found NSP's negligence contributed 75% to plaintiff's injuries and Donovan's negligence (also submitted to the jury although it was not a party) 25%. Plaintiff Conover was found free from negligence. Damages of $300,000 were assessed by the jury.
On post-trial motions the court granted NSP judgment notwithstanding the verdict, and, in the event this judgment were vacated, a new trial. Plaintiff Conover appeals. The issues here are whether the trial court erred in holding: (1) that NSP, in effect, was not liable to plaintiff for any personal negligence as a matter of law; (2) that NSP as a matter of law was not vicariously liable to plaintiff for the negligence of its independent contractor; and (3) in granting a conditional new trial.
We first need to look more closely at the facts. Early in 1977 NSP determined that one of its feeder lines in a West St. Paul alley had to be upgraded and divided into two feeder lines. An employee of NSP examined the existing line, determined what materials were necessary and prepared an instructional sketch to be followed by the workers doing the upgrading. Five old poles that had been installed in 1936 were to be replaced. It was the testimony of NSP's construction field supervisor that the decision to replace the poles was dictated by the upgrading to a heavier, three-conductor line and not by the condition of the poles to be replaced.
Although NSP had the necessary expertise to do the work, its own employees were otherwise busy, so it hired Donovan to do the work. Donovan, a firm specializing in utility line construction work, had often been hired by NSP in similar situations in the past. The contract between the parties gave Donovan complete control and supervision of the project. Donovan's crew on this project consisted of a foreman and two linemen, one of whom was Conover. Conover, a lineman with 14 years' experience, was on the jobsite for the first time the morning of the accident, arriving after work was underway.
The job to be done involved transferring the secondary and service lines from the old pole to a new, taller pole that had already been erected near the old pole. When Conover arrived, the primary wire had already been removed from the old pole and the new replacement wires were in place on the new pole. Conover and his fellow lineman decided that Conover would climb the old pole while the other lineman would work on the new poles from an elevated bucket. The job foreman was aware of this procedure and did not object. Since Conover knew he was climbing an old pole, he tested it for stability by a visual inspection and by sounding with a hammer. The hammer sounding indicated to Conover that the pole could be climbed safely, but the visual inspection revealed shell or surface rot for some distance upward from the base of the pole. Conover decided to climb the new pole and to transfer to the old pole at the level of the telephone cable to avoid any slipping that the surface rot might cause. Upon reaching the top of the old pole, Conover unhooked the service and secondary lines from the old pole and hooked them to the elevated bucket operated by the other lineman. He was in the process of transferring himself back to the new pole to climb down when the old pole gave way, carrying Conover with it to the ground. An inspection then revealed the pole had rotted through and broken somewhere between ground level and about 12 inches below ground level.
Conover testified that he had made the decision the old pole was safe to climb above the shell rot because (1) it "sounded right" when struck by a hammer; (2) there were indications the pole had been climbed at least twice before in the course of the job; (3) he was not told that the pole had not been inspected before reconstruction started; (4) the stated reason for replacement of the poles was a change in primary lines rather than any deteriorated condition of the poles, and no one informed him that the poles were old and possibly dangerous; (5) the normal and customary procedure of utility companies is to have poles checked by a ground crew before the work is contracted out; and (6) the recommended practice for power companies is to inspect poles on an annual basis.
On the other hand, while there was evidence that probing the base does not always reveal heart rot, there was other evidence that sounding, alone, does not necessarily indicate the condition of the pole beneath the ground. Conover admitted that once the secondary and service lines were removed from the old pole, it lacked any lateral support and that there were other safer procedures he might have followed to do his work at the top of the old pole.
The union representative who investigated the accident testified that he was told by the crew foreman that the pole had been inspected by hammer sounding and screwdriver probing before the pole was climbed. He could not ascertain who in the crew had performed this inspection. The crew foreman was deceased and the second lineman was unavailable at the time of trial.
The trial court granted judgment notwithstanding the verdict on the sole ground that NSP as the employer of Donovan, an independent contractor, could not be held liable to Conover, who was Donovan's employee. While the trial court did not address the issue of NSP's liability for its own negligence, implicit in the court's ruling is that NSP was not personally negligent as a matter of law.
We first take up the implicit ruling of the trial court that NSP, as a matter of law, was not personally negligent.
The applicable standard to be applied by the trial court in determining the propriety of granting a motion for judgment notwithstanding the verdict is whether there is any competent evidence reasonably tending to support the verdict. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975). Such a motion "admits every inference reasonably to be drawn from the evidence as well as the credibility of the testimony of the adverse party." Id. Only where the facts are undisputed and reasonable minds can draw but one conclusion from them does the question for determination become one of law for the court. Kramer v. Kramer, 282 Minn. 58, 65, 162 N.W.2d 708, 713 (1968).
1. At the outset it should be noted the parties agree that an employer of an independent contractor is liable for any personal negligence on his part which causes injury to an employee of the independent contractor. This personal negligence, in an appropriate case, may consist of breach of a duty to exercise reasonably careful supervision of a jobsite where employees of the independent contractor are working when the employer retains control or some measure of control over the project. See Thill v. Modern Erecting Co., 272 Minn. 217, 136 N.W.2d 677 (1965), adopting Restatement of Torts § 414 (1934). Even where the employer retains no control, he may still owe a duty of care, as a possessor of land, to persons coming on the premises, including the employees of an independent contractor. Ordinarily this duty would be to inspect and to warn before turning over the jobsite. See Whirlpool Corp. v. Morse, 222 F.Supp. 645 (1963), aff'd, 332 F.2d 901 (8th Cir. 1964) ().
At oral argument NSP acknowledged it could be liable for its own negligence; it was NSP's position, however, that the facts do not warrant imposition of personal liability. It is undisputed that NSP retained no control over the project and therefore had no duty of project supervision. NSP then argues it owed no duty to inspect the poles or to warn Conover, since Conover and Donovan had their own duties to inspect and did not need a warning of a danger or hazard they were just as well aware of as NSP.
We disagree with NSP that it breached no personal duty to Conover. There was considerable evidence on the different responsibilities and inspection procedures of NSP as the utility company, Donovan as the electrical construction independent contractor, and Conover as the contractor's employee. Considering that evidence under the general negligence instruction given by the court, the jury could have properly concluded that...
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