Elkins v. Arkla, Inc.
| Decision Date | 15 March 1993 |
| Docket Number | No. 92-1090,92-1090 |
| Citation | 849 S.W.2d 489,312 Ark. 280 |
| Parties | Lisa ELKINS, Administratrix of the Estate of Paul Dennis Elkins, Deceased, Appellant, v. ARKLA, INC., Appellee. |
| Court | Arkansas Supreme Court |
Lowber Hendricks, Little Rock, for appellant.
Gill Wallace Clayton, Little Rock, for appellee.
This is a wrongful death case. Lisa Elkins, the appellant, brought the action as administratrix of the estate of her deceased husband, Paul Elkins. Paul Elkins was employed by Daniel Utility Construction Co. (Daniel) which had contracted with the appellee, Arkla, Inc., (Arkla) to lay a pipe. He died when a 10-foot deep ditch in which he was working collapsed, causing him to be asphyxiated. Arkla moved for summary judgment on the ground that Daniel, its independent contractor, was responsible for supervision of the job and Arkla owed no duty to a Daniel employee to see to it that the work was done safely. Summary judgment was awarded to Arkla. The question before us is whether there was a remaining genuine issue of material fact which should have precluded summary judgment. Ark.R.Civ.P. 56(c). We hold there was.
The question of duty owed by one person to another is ordinarily one of law. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992). When, however, the matter of a legal duty is the subject of a contract which is ambiguous as to the parties' intent, a question of fact is presented. Tribble v. Lawrence, 239 Ark. 1157, 396 S.W.2d 934 (1965); Manhattan Factoring Corp. v. Orsburn, 238 Ark. 947, 385 S.W.2d 785 (1965).
Even though the owner of a construction project hires an independent contractor to do the work, the owner may retain the right and duty to supervise to the extent that it becomes responsible for injury resulting from negligence in performance of the work. The Restatement (Second) of Torts § 414 (1965), provides:
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.
As Comment C to that section states,
In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. [Emphasis added].
Arkla's contention is that the contract in this case gave it authority to supervise the work only in the sense that Arkla could see to it that the results of the work were satisfactory and that the day-to-day supervisory responsibility of the manner of construction of the pipeline was left to Daniel. Ms. Elkins contends the contract gave Arkla the right and duty to supervise the work not only as to results but as to the manner of achievement.
Here is a description of some of the contract terms. Under section 1.09 C, an engineer or inspector, representing Arkla, is given authority "to require the removal of any employee of [Daniel] who, in his opinion, is considered incompetent or not qualified to perform his work in a satisfactory manner." Section 1.15 B provides the engineer or inspector, when giving instructions "shall have authority to make minor changes in the work, not involving extra cost, and not inconsistent with the purposes of the work,...." Section 1.22 provides the contract may be terminated upon seven days notice if Daniel "fails to supply enough properly skilled workmen or proper equipment and materials" or "persistently disregard laws, ordinances or the instructions of the Engineer or Inspector." Section 1.39 provides "[t]he Engineer shall have direct supervision of Inspectors whose duty it shall be to see that the work is done properly and in accordance with the Contract Documents." Section 1.38 provides:
The Engineer or Inspector shall have general supervision and direction of the work. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract. He shall also have authority to reject all work and materials which do not conform to the Contract.
As can be seen, some of the provisions seem to support Arkla's argument that its supervisory authority was limited to saying when it was and was not satisfied with results as the work went along. Yet other provisions, particularly Section 1.38, seem to give Arkla general authority to supervise the details of the work.
In other cases we have found that a construction contract with an independent contractor presented a question of fact with respect to the duty to supervise. In Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (1960), the contract was very similar to the one here. It contained the same language as Section 1.38, giving general supervisory authority to a firm of architects to supervise an independent construction contractor on behalf of the owner. We held that a question of fact as to the assignment of duty was presented.
Arkla's attempt to distinguish the Erhart case on the basis that the contract provided that the defendant-architect was being paid to assure the contractor was in compliance with the contract must fail. That is exactly what the Arkla engineer or inspector was to do according to the contract in this case. As stated in the Erhart opinion, the contract provided that As in this case, that left a jury question.
In Walker v. Wittenberg, et al., 241 Ark. 525, 412 S.W.2d 621 (1966), an architect was hired to...
To continue reading
Request your trial
-
Lee Lewis Const., Inc. v. Harrison
...Co., 614 P.2d 1341, 1347 (Alaska 1980); Lewis v. N.J. Riebe Enters., Inc., 170 Ariz. 384, 825 P.2d 5, 9 (1992); Elkins v. Arkla, Inc., 312 Ark. 280, 849 S.W.2d 489, 490 (1993); Ahl v. Stone Southwest, 666 So.2d 922, 924-25 (Fla.Dist.Ct.App.1995); Lyon v. Morphew, 424 Mass. 828, 678 N.E.2d 1......
-
In re Fedex Ground Package System Inc.
...work—even though the contractor still is generally considered an independent contractor and not an employee. Elkins v. Arkla, Inc., 312 Ark. 280, 849 S.W.2d 489, 490 (1993) ( citing Restatement (Second) of Torts § 414). As the Arkansas Supreme Court put it, “[W]hen one is sought to be held ......
-
Hooker v. Department of Transportation
...evidence as to retention of control. (See Alabama Power Co. v. Beam (Ala.1985) 472 So.2d 619, 622-625; Elkins v. Arkla, Inc. (1993) 312 Ark. 280, 849 S.W.2d 489, 490-492; Corsetti v. Stone Co. (1985) 396 Mass. 1, 483 N.E.2d 793, 799; Clausen v. Aberdeen Grain Inspection (S.D.1999) 594 N.W.2......
-
Henderson v. Tyson Foods, Inc.
...can be turned off for cleaning, while the depth of a ten-foot ditch for a gas pipe cannot be turned off. See Elkins v. Arkla, Inc., 312 Ark. 280, 849 S.W.2d 489 (1993) (where the Arkansas Supreme Court reversed a grant of summary judgment on the issue of whether Arkla was responsible for su......