Fettig v. Whitman

• Decision Date: 18 June 1979
• Docket Number: No. 9558,9558
• Citation: 285 N.W.2d 517
• Parties: Carole FETTIG and Harvey Fettig, Plaintiffs and Appellants, v. Frank WHITMAN, Whitman's Inc., a corporation, and Richard Sturn, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 517

285 N.W.2d 517

Carole FETTIG and Harvey Fettig, Plaintiffs and Appellants, v. Frank WHITMAN, Whitman's Inc., a corporation, and Richard Sturn, Defendants and Appellees.

Civ. No. 9558.

Supreme Court of North Dakota.

June 18, 1979.

As Corrected on Denial of Rehearings July 13 and Aug. 22, 1979.

Rehearing Denied Sept. 26, 1979.

Chapman & Chapman, Bismarck, and Christensen & Thompson, Bismarck, for plaintiffs and appellants; argued by Daniel J. Chapman and Maury C. Thompson, Bismarck.

Wheeler, Wolf, Wefald & Peterson, Bismarck, for defendants and appellees; argued by David L. Peterson, Bismarck.

SAND, Justice.

Carole Fettig was seriously injured as the result of a fall through an open stairwell in a house being constructed for her and her husband. The district court, following the submission of evidence by the parties at trial, entered an order dismissing the general contractor from the subsequent action brought by the Fettigs. The Fettigs appealed from the order of dismissal asserting the general contractor was vicariously liable for the negligence of the carpenter it employed to build the house. We affirm.

On 10 September 1971, Harvey Fettig entered into a contract with Frank Whitman, d. b. a. Whitman's, Inc., for the construction of a house. Under the terms of the contract, Whitman's was to furnish the materials and labor for the house except for the "insulating, taping, texturing, painting and staining" which was to be performed by Fettig. Whitman's subcontracted the electrical and plumbing work for the house and hired Richard Sturn to perform the necessary carpentry work.

Soon after Sturn began work on the house, he and Harvey Fettig reached a verbal agreement whereby Harvey would assist Sturn in the construction of the house and Sturn would help Fettig with the taping and other finish work Fettig was responsible for under the contract. Although Harvey's wife, Carole, was not included in this work agreement, she periodically provided general assistance to her husband and Sturn.

At the time of the accident, the house was basically framed and sheathed. The subfloor of the house was in place and the studdings for at least some of the inside walls were also in place. During the course of laying the subfloor, a hole between the main floor of the house and the unfinished basement below was left open to serve as a stairwell. The stairway itself was not in place at the time of the accident, and the distance between the main floor and the floor of the basement was approximately 8 or 9 feet. Prior to the accident, this stairwell opening was covered with lumber, however, testimony at trial indicated that on the day of the accident the lumber covering the hole was removed and used in the construction project.

On the day of the accident, 11 November 1971, at approximately 6:00 o'clock p. m., Carole Fettig walked to the construction site to summon the two men to dinner. When Carole arrived at the site, Sturn suggested that if the three of them worked a short while longer they could finish putting in a window. Although testimony at trial differed as to exactly how dark it was at this time, the evidence was undisputed that it was no longer daylight and the only artificial lighting came from a trouble light laying on the floor in a corner of the house.

While putting the window in place, either Fettig or Sturn requested Carole to get a stepladder which was laying at the other end of the house. Carole walked to the ladder, picked it up, and was on her way back to where the men were working when she accidentally stepped into the stairwell opening. She was not aware the stairwell had been uncovered. As a result of her fall, Carole was seriously injured.

An action was started by the Fettigs against Sturn, Whitman's, Inc., and Frank Whitman, individually, ¹ by a summons and complaint filed 6 August 1973. Following the submission of evidence by the parties, but before the case was submitted to the jury, the trial court granted a motion ² to dismiss Whitman's on the ground Whitman's was not liable for an injury resulting from the negligence of its independent contractor, Sturn. An agreement was then reached whereby Sturn was dismissed from the action and the Fettigs retained their right to appeal from the motion dismissing Whitman's. A formal written order dismissing Whitman's was filed 13 June 1978, from which Fettigs appealed.

Fettigs argued the question of whether or not Sturn was an employee or an independent contractor of Whitman's was a question of fact for determination by the jury.

In almost any given situation, the question whether one is an employee or an independent contractor depends largely upon the facts and circumstances of the transaction and the context in which they must be considered. Ordinarily a question of fact for the jury, the determination of whether or not one is an independent contractor, becomes a question of law when the facts are undisputed and only one inference can reasonably be drawn therefrom. Slope County Board of County Commissioners v. Consolidation Coal Co., 277 N.W.2d 124 (N.D.1979); La Bree v. Dakota Tractor & Equipment Co., 69 N.D. 561, 288 N.W. 476 (1939).

This court has stated:

" 'One of the most important tests to be applied in determining whether a person who is doing work for another is an employee or an independent contractor is whether the person for whom the work is done has the right to control, not merely the result, but the manner in which the work is done, as well as the method used.' Janneck v. Workmen's Compensation Bureau, 67 N.D. 303, 272 N.W. 188, 189. See also Bernardy v. Beals, 75 N.D. 377, 28 N.W.2d 374 and cases cited." Newman v. Sears, Roebuck & Co., 77 N.D. 466, 43 N.W.2d 411, 414 (1950).

In applying the above rule of law to the facts in this case, we find particularly relevant a statement of this court in Starkenberg v. North Dakota Workmen's Compensation Bureau, 73 N.D. 234, 13 N.W.2d 395 (1944), wherein we said at paragraph 2 of the syllabus:

"One who contracts to construct a building for another, in accord with a stipulated plan, without being subject to the latter's superintendence, orders, or control in respect of the details of the work; who has absolute control of the work, may work such hours as he sees fit to work, may do the work himself or employ others to assist, and is to be paid a definite, stipulated sum when the building has been fully completed, is not an employee but is an independent contractor."

The facts before us are nearly identical to the situation described in Starkenberg. In this case Sturn was hired for a stipulated sum to complete the construction of the building according to an agreed-upon plan. The record indicates Sturn was in control with respect to the details of the work and also that he worked the days and hours he saw fit. Although evidence was introduced that on one occasion Whitman's requested Sturn to work on another project instead of the Fettig residence, such activity does not go to the details of the contracted work. A general contractor is allowed to place priorities on the different work he contracts to an independent contractor. Such priority placing does not, in itself, make the independent contractor an employee.

The strongest factor in determining the status of Sturn as an independent contractor was the work agreement he had with Harvey Fettig. Generally when one enters into a relationship of independent contractor, he has the right to choose his own employees and servants to carry on the work, being responsible to the contractor only to produce the results according to the contract. LaBree v. Dakota Tractor & Equipment Co., supra at 481. The work agreement between Sturn and Harvey Fettig did not involve or depend upon the approval of Whitman's. Sturn testified at trial that if he had not entered into the agreement with Fettig, he would have had to hire someone to assist him. This arrangement whereby Sturn agreed to do work not in his original contract with Whitman's in exchange for Fettig's assistance, demonstrates the status of Sturn as an independent contractor. We conclude reasonable men could not differ as to the inference to be drawn from the facts and thus the issue of Sturn's status as an independent contractor was properly removed from the jury. ³

The Fettigs contended that even if Sturn is considered an independent contractor, Whitman's is vicariously liable for Sturn's negligence. As authority, Fettig cited the decision of Ruehl v. Lidgerwood Rural Telephone Co., 23 N.D. 6, 135 N.W. 793, 795-796 (1912), in which this court stated the rule "that where, in the making of an improvement of any kind, it is manifest that injury is likely to result, unless due precautions are taken, a duty rests upon him who causes the work to be done to see that all necessary precautions are taken." This is in effect an exception to the general rule that an employer is not liable for the torts of his independent contractor. See Foremost Insurance Co. v. Rollohome Corp., 221 N.W.2d 722 (N.D.1974); Schultz & Lindsay Construction Co. v. Erickson, 352 F.2d 425, 436 (8th Cir. 1965); Newman v. Sears, Roebuck & Co., supra; Taute v. J. I. Case Threshing Machine Co., 25 N.D. 102, 141 N.W. 134 (1913). See also, Restatement of Torts 2d, §§ 413, 416, 427; Annot., 23 A.L.R. 1016; Annot., 23 A.L.R. 1084; 41 Am.Jur.2d Independent Contractors §§ 40, 41, 43.

The trial court, in granting the motion to dismiss Whitman's, stated the above exception to the general rule as set out in Ruehl but concluded it was not applicable in this case.

The exception that the employer remains liable for injuries resulting from dangers which he should contemplate at the time that he enters into the contract, and cannot shift to the contractor the responsibilities for such dangers, or for taking precautions against them, actually encompasses two separate rules which are often not distinguished. The first of these is commonly...