Easter v. Percy
| Decision Date | 18 April 1991 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 168 Ariz. 46,810 P.2d 1053 |
| Parties | James D. EASTER, Plaintiff-Appellant, v. Oscar L. PERCY and Mary Jeanne Percy, husband and wife; John Carollo Engineers, an Arizona business entity; John Carollo and Jane Doe Carollo, husband and wife, Defendants-Appellees. 89-141. |
| Court | Arizona Court of Appeals |
The plaintiff, James Easter, was employed by the general contractor on a project for the construction of a water treatment plant. He was injured on the job by a piece of falling rebar. He sued John Carollo Engineers, the consulting engineers on the project, and a Carollo employee, Oscar L. Percy, who was the chief inspector for the project. He alleged that his injuries were the result of the defendants' negligent inspection and supervision of the work.
The defendants filed a motion for summary judgment, arguing that they owed no duty to the plaintiff to prevent his injury on the job. They also contended that even if a duty were found to exist, there was no evidence of breach of that duty since the plaintiff failed to offer expert testimony on the standard of care required of the defendants. The trial court granted summary judgment for the defendants, finding as a matter of law that they owed no duty to the plaintiff to inspect for safety.
The facts are not in dispute. Dillingham Heavy Construction, Inc. was the general contractor hired to construct the Union Hills Water Treatment Plant for the City of Phoenix. The plaintiff was employed by Dillingham as a carpenter on the project. Bear River Steel Company subcontracted with Dillingham to install the structural steel rebar.
John Carollo Engineers is an engineering firm specializing in the design of waste water treatment projects. The city hired Carollo pursuant to a written contract to furnish "construction administration and other related services" to the city in connection with its construction of the Union Hills Water Treatment Plant. The agreement provided that Carollo would furnish the services of a competent engineer and inspectors. Carollo assigned its employee, Oscar Percy, as chief inspector for the project.
Carollo's agreement with the city spelled out the scope of the inspection services that Carollo was to perform. The agreement stated that Carollo's inspectors would inspect the contract work for compliance with contract plans and specifications. The agreement contained the following limiting language:
A. INSPECTION
Inspection services shall be furnished by John Carollo Engineers, hereinafter referred to as the Engineer, as set forth below.
1. Furnish the services of a competent resident engineer and resident inspectors as shown on Exhibit "C" to inspect the contract work for compliance with contract plans and specifications. The Engineer will be responsible to coordinate and perform inspection activities including necessary quality control testing required by the contract.
Inspection by the Engineer shall not be considered as direct control of individual workman and his work. The direct construction control and all job safety shall be solely the contractor's responsibility.
Dillingham, as contractor, passed some of its responsibility for work safety on to the parties with whom it subcontracted. The subcontract with Bear River required Bear River to comply with all safety requirements, inspect the work site for safety violations, and assume sole responsibility for providing a safe place to work.
The plaintiff was injured when a piece of rebar fell on him while he was removing a concrete form from a wall. It fell from a structure that had been made of many pieces of rebar tied together with thousands of ties. The rebar had been assembled and installed by Bear River. The defendant, Oscar Percy, had inspected and accepted the rebar structure as complying with the plans and specifications. According to his deposition testimony, he had inspected it both while it was on the ground and after it had been lifted into place to form a wall. He had found that it met the contract plans and specifications. He stated that he had not noticed that any of the rebar pieces were improperly tied, but also said that it would have been unlikely that he would have spotted such a condition. He explained that, in the inspection process, he made a general determination of whether enough rebar was used and whether it was spaced and tied properly, but that he could not have individually checked each of the thousands of ties. According to Percy, who had been an inspector on construction projects for more than twenty years, no closer inspection of the ties was required by an inspector. There is no contention that the defendants had any right to control the details of how the contractor and various subcontractors performed their work.
To maintain an action for negligence, a plaintiff must show that there is a duty or obligation, recognized by law, which requires the defendant to use a particular standard of care to avoid or prevent injury to the plaintiff. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983). A defendant who owes no duty to the plaintiff cannot be liable to him even if the defendant acts negligently. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985). The issue of duty is usually one for the court as a matter of law. Beach v. City of Phoenix, 136 Ariz. 601, 604, 667 P.2d 1316, 1319 (1983).
The trial court concluded as a matter of law that the defendants in this instance owed no duty to the plaintiff to protect him against bodily injury. The plaintiff argues that the defendants owed him such a duty under its contract to inspect the project. Alternatively, he argues that, even if the contract did not impose a duty, the defendants, by their actions, voluntarily undertook to protect him and were negligent in the way they carried out this responsibility.
We first turn to the issue of whether the contract between the defendants and the city imposed a duty on the defendants to safeguard...
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