Farris v. General Growth Development Corp., 2-69437

• Decision Date: 26 June 1984
• Docket Number: No. 2-69437,2-69437
• Citation: 354 N.W.2d 251
• Parties: Dennis C. FARRIS and Judy Farris, Individually; and Kristine Marie Farris and Jodi Lynn Farris, Minors, by Dennis C. Farris, their Father and Next Friend, Plaintiffs-Appellees/Cross-Appellants, v. GENERAL GROWTH DEVELOPMENT CORPORATION, Defendant-Appellant/Cross-Appellee.
• Court: Iowa Court of Appeals

Page 251

354 N.W.2d 251

Dennis C. FARRIS and Judy Farris, Individually; and Kristine Marie Farris and Jodi Lynn Farris, Minors, by Dennis C. Farris, their Father and Next Friend, Plaintiffs-Appellees/Cross-Appellants, v. GENERAL GROWTH DEVELOPMENT CORPORATION, Defendant-Appellant/Cross-Appellee.

No. 2-69437.

Court of Appeals of Iowa.

June 26, 1984.

James E. Walsh, Jr., and Timothy W. Hamann of Clark, Butler & Walsh, Waterloo, for defendant-appellant/cross-appellee.

Edward J. Gallagher, Jr., and Gregory Racette of Gallagher, Langlas & Gallagher, Waterloo, for the plaintiffs-appellees/cross-appellants.

Heard by OXBERGER, C.J., and HAYDEN, and SACKETT, JJ.

OXBERGER, Chief Judge.

The defendant appeals from judgment upon verdicts for the plaintiffs in this tort case arising from a construction accident. The defendant's numerous issues revolve around its contention that it, as an employer of the independent contractor, owed only a very limited duty of care to the employee of an independent contractor. The defendant contends the trial court's instructions misstated in several ways the law relating to the duty owed by an employer to the employee of an independent contractor; it also contends the evidence was not sufficient to permit the jury to find that a duty existed or had been breached in this case. The plaintiffs respond that their evidence of substantial and detailed supervision of the work site by the defendant's employees removes this case from general rules about the limited duties of an employer toward employees of an independent contractor.

The plaintiffs have cross-appealed from the judgment, challenging the trial court's refusal to award statutory interest on that part of the award to which a workers' compensation insurer possessed a right of subrogation. We affirm on both appeals.

Dennis Farris was a carpenter employed by Gibson Enterprises, a general contracting firm. Gibson Enterprises had contracted with the defendant General Growth Development Corporation (GGDC) to build an apartment building. The apartment building was to be managed by GGDC and was situated on land owned by a related company, General Growth Properties.

During the construction of this apartment building, Dennis Farris was severely injured when he fell from the third floor deck before the walls had been erected. No guardrails, scaffolds, or other safety barriers were in place at the time of Farris's fall.

Farris received slightly over $100,000 in workmen's compensation payments from Gibson's insurer. In addition, he filed the present lawsuit against GGDC. (His wife and children were also plaintiffs, seeking damages for loss of consortium). Gibson's insurer filed a lien against any recovery had by Dennis Farris to the extent of the workmen's compensation benefits paid. A jury awarded Dennis Farris damages of $240,000 from GGDC; the jury also awarded Farris's wife $15,000 and his children $40,000.

The general rule is that an employer of an independent contractor is not vicariously liable for injuries arising out of the contractor's negligence. Lunde v. Winnebago Industries, Inc., 299 N.W.2d 473, 475 (Iowa 1981). The explanation most commonly given for that rule is that since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise. Restatement (Second) of Torts § 409 comment b (1965). There are, however, exceptions to the rule. The issue here is whether there is an exception that applies in this case and whether Farris is within the class of persons who fall within the exception.

This is an action at law and our review is on assigned errors. Iowa R.App.P. 4.

I. Instruction No. 11

Appellant, General Growth Development Corporation (GGDC), first contends that the trial court erred in instructing the jury that GGDC owed Farris the duty of providing him a safe place to work. The thrust of this contention is that a party must be in possession of the premises before any responsibility for providing a safe place for others can attach. Appellant argues that GGDC was not in possession of the premises, and that therefore this exception is inapplicable. We do not agree.

The exceptions to the independent contractor rule are contained in Restatement (Second) of Torts sections 410 through 429. Section 414 provides that:

[o]ne 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.

Comment (b) to section 414 provides in pertinent part that:

[t]he rule stated in this Section is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others...

The duty imposed upon GGDC, as general contractor, to exercise reasonable care to prevent injuries on the job site may be premised upon its possession and control of the premises. ¹ We are of the opinion that GGDC was in possession of the premises. Restatement (Second) of Torts section 422 provides that normally an owner of property is liable for injuries caused to others by the unsafe condition of the property as long as he has possession of the land. However, comment (c) provides that an owner is not liable for injuries occurring while the land is turned over to a contractor since "[p]ossession usually is surrendered fully in the case of construction." The logical converse of this provision is that the general contractor acquires possession in such circumstances. This conclusion is further buttressed by Lunde, wherein the court held that an owner of property surrenders possession unless his involvement in overseeing the construction is "substantial." Id. at 479.

Normally when a general contractor has a supervisor on the site, it will be able to exercise control over the premises. Clearly this was the case here. GGDC's supervisor, Dick Cable, was in charge of coordinating all subcontractors and inspecting the work as it was completed on this job. Cable had a trailer on the job site and was present on the construction site daily. Farris's testimony indicated that Cable, on several occasions, directed Gibson's workers on what to do and how to do it. Farris stated that Cable would show Gibson's workers how to get ice off the rafters. Another worker, Owens, stated that he voiced his complaints to Cable about the safety of the job and the fact that there were no railings on the open-sided deck. Wilkins, a carpenter on the job site, testified that on two occasions Cable directly instructed him. Another carpenter, Scoles, related that on one occasion Cable gave him direct work instructions. He further testified that he followed those instructions because he considered Cable to be the boss on this job. John Brandt, a carpenter for Gibson, testified that Cable gave him and other Gibson carpenters direct instructions on what to do, and also Cable would get involved because "[h]e had the final word."

Since GGDC was in possession of, and had control over the premises, the trial court did not err by instructing the jury that GGDC owed Farris a duty to provide a reasonably safe place to work.

II. Instruction No. 10

GGDC asserts that the trial court erred by instructing the jury that GGDC had assumed safety responsibilities for Farris by contract and such assumed responsibility was nondelegable. The trial court instructed on such duties as a matter of law.

Iowa Uniform Civil Jury Instruction No. 25.8 states in part:

where a person who engages the services of an independent contractor is under a duty to provide specified safeguards or precautions for the safety of others, he cannot escape responsibility by delegating it to an independent contractor, and a failure to perform such duty would constitute negligence, whether the duty is imposed by law or by contract.

Likewise, the court in Giarratano v. Weitz Company, 259 Iowa 1292, 147 N.W.2d 824 (Iowa 1967), stated that when a "[general contractor] assume[s] a duty under its contract with [the owner] for the safety of the workmen ... this responsibility cannot be delegated even though [the general contractor] had employed an independent contractor to do the actual work." Id. at 1305, 147 N.W.2d at 832. Therefore, if we find that GGDC assumed a duty under its contract with General Growth Properties (the owner) for the safety of the workmen, such responsibility cannot be delegated to Gibson. We find such to be the case.

In Article 5, subsection A under Requirements of Contractor, the contract between GGDC and General Growth Properties states in part: "[t]he contractor further shall comply with the provisions of the Manual of Accident Prevention in Construction of the Associated General Contractors of America." The manual contains a chapter on safety nets, when and where to use them, and what kind to use. Specifically, it states: "[s]afety nets should be installed when men are likely to fall." There is also a chapter entitled "Floor and Wall Openings." Within that chapter is the requirement that "any and all floor openings that exceed 12 inches or more in least dimension in area should be planked over or barricaded with substantial railing." GGDC further, in the request for admissions, agreed to take all reasonable precautions for the safety of its employees working on said construction job. GGDC even states in its brief that the aforementioned contract segment obviously does place an obligation on GGDC insofar as its agreement with the owner of the property.

The rule is well settled in Iowa that where...