Fleck v. ANG Coal Gasification Co.

• Decision Date: 03 October 1994
• Docket Number: No. 940062,940062
• Citation: Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445 (N.D. 1994)
• Parties: Melvin FLECK, Plaintiff and Appellant, v. ANG COAL GASIFICATION CO., a foreign corporation, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 445

522 N.W.2d 445

Melvin FLECK, Plaintiff and Appellant, v. ANG COAL GASIFICATION CO., a foreign corporation, Defendant and Appellee.

Civ. No. 940062.

Supreme Court of North Dakota.

Oct. 3, 1994.

David C. Thompson (argued), Grand Forks, Jeanette T. Boechler, Boechler Law Firm, Fargo, and Irvin B. Nodland, Irvin B. Nodland, P.C., Bismarck, for plaintiff and appellant.

Randall J. Bakke, Smith Bakke & Hovland, Bismarck, for defendant and appellee.

VANDE WALLE, Chief Justice.

Melvin Fleck appealed from a summary judgment dismissing his personal injury action against ANG Coal Gasification Company [ANG]. We affirm.

ANG operates a coal gasification plant in Beulah, North Dakota. In 1984, ANG hired Ceramic Cooling Tower Company [CCT] to replace plastic tiles with ceramic tiles in the water cooling towers at ANG's plant. The parties agree that CCT was an independent contractor.

Fleck was an employee of CCT. Part of Fleck's job included removing the existing plastic tiles from the inside of the water cooling towers. These plastic tiles were coated with a black, slimy residue from the water which flowed through the towers when they were operational. Because of high humidity and dirty working conditions in the towers, CCT's employees were provided face masks and rubber "slickers," boots, and gloves. Although he had a history of asthma, Fleck did not wear his face mask.

On July 30, 1984, Fleck experienced respiratory difficulties and collapsed while working in the towers. Fleck subsequently saw a doctor, who diagnosed Fleck's difficulties as asthma, rhinitis, and bronchitis. The doctor prescribed medication and instructed Fleck to return in two months for a follow-up visit. Fleck did not return for the follow-up visit. Fleck applied for and received workers compensation benefits for the July 30 incident.

Fleck brought this action against ANG in 1990, asserting that he had developed occupational asthma as a result of exposure to hazardous chemicals while working in the water cooling towers at ANG's plant. ANG moved for summary judgment, asserting that it had no duty to provide for Fleck's safety on the job, that there were no hazardous substances present in the towers, and that Fleck's injuries were not caused by any exposure while working at the plant. The trial court determined that ANG, as an employer of an independent contractor, had not retained such control of the work so as to incur a duty for Fleck's safety; that the work was not inherently dangerous and did not involve peculiar risk; and that Fleck had failed to present any evidence that hazardous chemicals which might have caused his injuries were present in the towers. The court ordered entry of summary judgment dismissing Fleck's action and awarded costs to ANG.

The following issues are dispositive of the appeal:

I. Did ANG retain sufficient control over the work to create a duty to exercise that control with reasonable care under Section 414, Restatement (Second) of Torts?

II. Do the rules imposing vicarious liability upon one who hires an independent contractor to perform inherently dangerous work, or work involving peculiar risk, provide protection to employees of the independent contractor?

III. Is a party who prevails on summary judgment entitled to recover costs and disbursements?

I. RETAINED CONTROL--SECTION 414

Generally, one who employs an independent contractor is not liable for the acts or omissions of the independent contractor. Madler v. McKenzie County, 467 N.W.2d 709 (N.D.1991); Schlenk v. Northwestern Bell Telephone Co., 329 N.W.2d 605 (N.D.1983); Restatement (Second) of Torts § 409 (1965). However, Section 414 of the Restatement (Second) of Torts creates liability when the employer retains control over the work:

" § 414. Negligence in Exercising Control Retained by Employer

"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."

We have previously recognized a cause of action based upon retained control under Section 414. See Zimprich v. Broekel, 519 N.W.2d 588 (N.D.1994); Madler v. McKenzie County, supra; Schlenk v. Northwestern Bell Telephone Co., supra; Peterson v. City of Golden Valley, 308 N.W.2d 550 (N.D.1981). Employees of an independent contractor fall within the protection of Section 414, and an employer of an independent contractor owes a duty to the independent contractor's employees to exercise the retained control with reasonable care. Madler, supra. Section 414 does not make the employer vicariously liable for the acts of the independent contractor, but creates an independent basis of liability for the employer's failure to exercise retained control with reasonable care. Zimprich, supra; Madler, supra.

The liability created by Section 414 arises only when the employer retains the right to control the method, manner, and operative detail of the work; it is not enough that the employer merely retains the right to inspect the work or to make suggestions which need not be followed. Comment c to Section 414 explains the difference:

"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."

See also Zimprich, supra; Madler, supra; Schlenk, supra.

We recognized in Madler that the duty created by Section 414 may arise in two ways: through express contractual provisions retaining the right to control the operative detail of some part of the work, or through the employer's actual exercise of such retained control at the jobsite. Fleck does not assert that ANG retained control over any operative details of the work in the provisions of the contract, and concedes that the contract gives CCT full control over the manner and method of performing the work. Fleck asserts, however, that ANG exercised actual control over the work at the jobsite sufficient to create a duty under Section 414.

Fleck relies upon evidence of three factors which, he asserts, demonstrates ANG's control over CCT's performance of the contract: (1) ANG provided the rubber "slickers," gloves, and boots worn by CCT's employees on the jobsite; (2) ANG employees periodically tested the air in the cooling towers to assure there was sufficient oxygen; and (3) an ANG employee periodically walked through the cooling towers to view the work. The parties dispute these issues, and there is conflicting evidence on each. In accordance with our law on summary judgment, all favorable inferences must be drawn in favor of Fleck as the party opposing summary judgment, and we therefore assume the truth of Fleck's assertions. ¹ See, e.g., Farmers Union Oil Co. v. Harp, 462 N.W.2d 152 (N.D.1990).

However, even assuming Fleck's factual assertions are true, those facts do not give rise to a duty under Section 414. Fleck testified that he got "the rain gear and the gloves" from the CCT foreman, who in turn got them from ANG. However, Fleck fails to point out any evidence that ANG required that these items be worn by CCT's workers. Accordingly, ANG's conduct can be viewed, at best, as a "suggestion" or "recommendation" regarding safety equipment that CCT did not necessarily need to follow. See Comment c, Restatement (Second) of Torts § 414; Zimprich, supra; Madler, supra; Schlenk, supra.

Similarly, ANG's testing for sufficient oxygen in the water cooling towers, and providing that information to CCT, did not constitute retention of control over the operative detail of the work. Fleck suggests, in a conclusory fashion, that ANG's testing constituted control over "the handling of safety at the work site." However, Fleck wholly fails to explain how ANG's taking of air samples correlates to retained control over the method and manner of performing the work. We agree with the trial court that the fact ANG "supplied analytical data concerning the material composition of the substances in the cooling towers" does not constitute retained control sufficient to impose liability under Section 414.

Finally, Fleck urges that ANG's daily inspection of the work constituted retained control over the work. By Fleck's own testimony, this inspection consisted of an ANG "plant supervisor ... [who] [c]hecked on us once in a while ... to see how the job was going." There was no evidence that this ANG employee directly supervised or controlled any aspect of the work. This clearly amounts to mere inspection and monitoring to assure compliance with the contract, which does not give rise to liability under Section 414. See Zimprich, supra; Comment c, Restatement (Second) of Torts § 414.

Summary judgment is appropriate, even if there are disputed factual issues, if resolution of the disputed facts would not alter the result. Aaland v. Lake Region Grain Cooperative, 511 N.W.2d 244 (N.D.1994). Giving Fleck the benefit of all inferences and assuming the truth of his factual assertions, there is still no evidence that ANG retained control over the operative detail of any part of the work contracted to CCT. Accordingly, no duty arose under Section 414 as a matter of law, and summary judgment was appropriate.

II. INHERENT DANGER AND PECULIAR RISK

Fleck asserts that the work CCT performed was...