Epperly v. City of Seattle

• Decision Date: 25 February 1965
• Docket Number: No. 37287,37287
• Citation: 65 Wn.2d 777,399 P.2d 591
• Court: Washington Supreme Court
• Parties: Elaine EPPERLY, individually and as personal representative of the heirs of and as the administratrix of the Estate of Guy W. Epperly, deceased, Appellant, v. CITY OF SEATTLE, Respondent and Cross-Appellant, Merritt-Chapman & Scott Corporation, Respondent.

Page 777

65 Wn.2d 777

399 P.2d 591

Elaine EPPERLY, individually and as personal representative of the heirs of and as the administratrix of the Estate of Guy W. Epperly, deceased, Appellant, v. CITY OF SEATTLE, Respondent and Cross-Appellant Merritt-Chapman & Scott Corporation, Respondent.

No. 37287.

Supreme Court of Washington, Department 1.

Feb. 25, 1965.

As Corrected March 9, 1965.

Kelley & O'Sullivan, Seattle, for appellant.

A. L. Newbould, Chief Corp. Counsel, John A. Logan, Robert Ward Freedman, Assts. Corp. Counsel, Seattle, for respondent, City of Seattle.

Williams, Lanza, Kastner & Gibbs, Karr, Tuttle, Campbell, Koch & Granberg, John F. Kruger, Michael M. Corless, Seattle, for respondent Merritt-Chapman & Scott Corp.

SOULE, Judge. ^*

This is an appeal from a summary judgment granted in favor of defendants.

Guy W. Epperly died on April 4, 1960, from injuries received when struck by a falling cable while working on the High Gorge Dam on the Skagit River. Individually and as administratrix of his estate, his widow, Elaine Epperly, brought this action against only the city of Seattle, hereinafter designated as the city. The city brought a third-party action against Merritt-Chapman & Scott Corporation by virtue of a provision in the contract between the defendants which reads in part as follows:

'The contractor shall be responsible for the safety, adequacy, efficiency, and sufficiency of his plant and equipment, and for his method of prosecuting the work; and for the safety of his employees.

'The contractor shall be responsible for all damages to persons or property that occur as a result of his operations, fault, or negligence in connection with the prosecution of the work, and shall be responsible for all work performed until completion and final acceptance.'

In addition to alleging its right to indemnity under the foregoing language of the contract, the city also alleged separately and in the alternative that Merritt-Chapman & Scott Corporation, hereinafter called the contractor, was the active tort feasor.

There is no question but that Guy Epperly was an employee of the contractor.

The matter came before the trial court on the motion by the city to dismiss for want of prosecution under Rule of Pleading, Practice and Procedure 41.04W, RCW Vol. O, and also on the motion of the contractor to dismiss plaintiff's complaint for failure to state a claim for relief under Rule of Pleading, Practice and Procedure 12, RCW Vol. O.

After permitting the filing of appropriate evidentiary affidavits, this latter motion was treated as a motion for summary judgment, under Rule of Pleading, Practice and Procedure 56, RCW Vol. O, and an order was entered dismissing plaintiff's action. ¹

The undisputed facts are that, for the purpose of building the High Gorge Dam, the city entered into a written public works construction contract with the contractor, which contract contained many detailed specifications and reserved broad inspection rights to the city.

In order to facilitate the project, the contractor strung a cable across the gorge to carry a power line. To secure one end of the cable, the contractor designed, fabricated and installed a large pad eye, to which the cable was fastened. It was the failure of this device, after about 3 years' service, which permitted the cable to fall.

The pad eye, together with the cable, were wholly the instrumentalities of and under the control of the contractor, although they were, of course, placed upon city property. They were not part of the dam, as it was to be completed, and the transfer point for the electricity from the city to the contractor's line was a substantial distance from the construction site.

Although the complaint alleges active negligence on the part of the city, the plaintiff, in resisting the motion for summary judgment, conceded that the city had been entirely passive. In the affidavit filed by plaintiff's counsel in opposition to the motion, he said:

'It is plaintiff's entire case that the City of Seattle had a duty to inspect this appliance and see that it was adequate and safely installed, and it could not avoid this duty by entering into a contract with Merritt-Chapman & Scott.'

Likewise, in the brief originally filed by the plaintiff, it is argued:

'* * * that the erection of such cable with its attached pad-eye as fastened to the cliff overhead was such a dangerous appliance and instrumentality that the City of Seattle had a duty to provide for its safe construction and design, and could not delegate such responsibility to an independent contractor. * * *'

The plaintiff thus attempts to doublestring her bow. She alleges failure of the duty to furnish a safe place to work, and likewise, seeks to impose liability on the theory that the danger inhering in the device built and installed by the contractor gave rise to a nondelegable duty owed by the city, as owner, to the decedent, as a workman of the contractor.

The same attempt was made in Corban v. Skelly Oil Co., 256 F.2d 775, which is cited in plaintiff's brief. In that case, the court said, p. 780:

'On behalf of Corban it is urged that the work being done at the time of his injury was inherently dangerous regardless of the equipment used, and that, in such cases, the principal owes a non-delegable duty to see that the work is performed with the appropriate degree of care. It has been stated that 'An employer is liable for injuries caused by the failure of an independent contractor to exercise due care with respect to the performance of work which is inherently or intrinsically dangerous. The theory upon which the liability is based is that a person who engages a contractor to do work of an inherently dangerous character remains subject to an absolute, non-delegable duty to see that it is performed with that degree of care which is appropriate to the circumstances, or, in other words, that all reasonable precautions shall be taken during its performance, to the end that third persons may be effectually protected against injury'. 27 Am.Jur. 517, Independent Contracters, § 39. Thus it appears that the rule is designed to protect Third persons. As we have shown Corban was not in this class. We have seen no case where the inherently dangerous doctrine has been extended so as to permit an employee of an independent contractor to recover from the principal for a breach of the non-delegable duty. * * *' (Italics ours.)

Our perusal of the numerous authorities cited in plaintiff's briefs has led us to the same conclusion.

The doctrine of strict liability, of which the dangerous instrumentality, inherently dangerous activity, or ultrahazardous activity concepts are but facets, is discussed in Prosser on Torts (3d ed.) § 74, p. 508:

'* * * It is conduct which does not so far depart from social standards as to fall within the traditional boundaries of negligence--usually because the advantages which it offers to the defendant and to the community outweigh even the abnormal risk; but which is still so far socially unreasonable that the defendant is not allowed to carry it on without making good any actual harm which it does To his neighbors.' (Italics ours.)

The plaintiff refers to Restatement, Torts § 423, p. 1142:

'MAKING OR REPAIR OF APPLIANCES USED IN ULTRAHAZARDOUS ACTIVITIES.

'One who as a business carries on an activity which threatens a grave risk of serious bodily harm or death unless the appliances used are carefully constructed and maintained and who employs an independent contractor to construct or maintain such appliances, is subject to the same liability for bodily harm caused by the negligence of the contractor in constructing or maintaining such appliances as though the employer had himself done the work of construction or maintenance.'

The example given in the comment is that of the duty of an electric power company to maintain its wires and appliances safely. As to third persons, it cannot escape liabilities by employing an independent contractor to maintain them but plaintiff would apply the principle to the workman of that independent contractor who is injured because he is furnished a defective appliance by his own employer.

The duty of one who carries on an ultrahazardous activity is defined in Restatement, Torts § 519, p. 41:

'Except as stated in §§ 521--4, one who carries on an ultrahazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultrahazardous, although the utmost care is exercised to prevent the harm.'

The exception is set forth in § 523, p. 49:

'The rule stated in § 519 does not apply where the person harmed by the unpreventable miscarriage of an ultrahazardous activity has reason to know of the risk which makes the activity ultrahazardous and

(a) takes part in it, * * *.'

In commenting on the foregoing section, the editors have noted that it is not necessary that the person who knows of the activity and its risks should know all of the causes of the risks inseparable from the activity. It is enough that he has reason to know that there is an unavoidable risk to which those taking part in the activity or coming within its reach will subject themselves. Thus the rule is plainly for the benefit of persons not engaged in promoting the activity and is not intended to define the duty of the owner to those employed by an independent contractor to carry on the work.

A corollary of the rule stated in Restatement, Torts § 523 is that if the injury is due to a preventable miscarriage, then liability rests upon the one who had the duty to prevent it. In this case, the duty related to a safe place to work.

Where the inherently dangerous activity doctrine is applicable, the law invokes the theory of respondeat superior, imposing the master-servant relationship upon the parties engaged in...