Ft. Lowell-NSS Ltd. Partnership v. Kelly

• Decision Date: 08 November 1990
• Docket Number: LOWELL-NSS,No. CV,CV
• Citation: 800 P.2d 962,166 Ariz. 96
• Parties: FT.LIMITED PARTNERSHIP, Petitioner, v. The Honorable John F. KELLY, a Judge for the Superior Court of the State of Arizona, County of Pima, Respondent, Josephine JULA and Michael Jula, wife and husband, Real Parties in Interest. 89-0349-PR.
• Court: Arizona Supreme Court

Page 962

800 P.2d 962

166 Ariz. 96

FT. LOWELL-NSS LIMITED PARTNERSHIP, Petitioner, v. The Honorable John F. KELLY, a Judge for the Superior Court of the State of Arizona, County of Pima, Respondent Josephine JULA and Michael Jula, wife and husband, Real Parties in Interest.

No. CV 89-0349-PR.

Supreme Court of Arizona, In Banc.

Nov. 8, 1990.

[166 Ariz. 98] Molloy, Jones & Donahue, P.C. by Ardner R. Cheshire, Jr., David J. Diamond, Tucson, for petitioner.

Rabinovitz & Associates, P.C. by Bernard I. Rabinovitz, Tucson, for real parties in interest.

OPINION

FELDMAN, Vice Chief Justice.

This case deals with exceptions to the general rule that an employer of an independent contractor is not liable for the latter's negligence. The main issue presented is whether the court of appeals erred in interpreting and applying the Restatement (Second) of Torts § 422(b).

FACTS AND PROCEDURAL HISTORY

Josephine Jula (Jula) was employed by National Self-Storage Development, Inc. (National), which operated at a storage facility owned by Ft. Lowell-NSS Limited Partnership (Ft. Lowell). Ft. Lowell engaged Hatfield and Associates as a general contractor. Glebe Electric (Glebe) was the electrical subcontractor which installed the conduit, electrical wiring, and fixtures according to the architectural plans.

Entry to the storage facility is obtained by entering a code on an electronic security system touch pad installed by Glebe. On April 3, 1985, Jula was demonstrating the security system to a new tenant when she received a severe shock. As a result, she suffers from transient dysphasia and right hemiparesis.

Jula sued National, Glebe, and other defendants. She later amended her complaint to add Ft. Lowell as a party. Ft. Lowell moved for summary judgment, arguing that its duty as a possessor of land was limited to operating the premises in a reasonably safe manner and warning of latent or concealed defects of which it had knowledge. Claiming it had no knowledge that the security system was defective, Ft. Lowell argued that it could not be liable for Jula's injuries.

The trial court denied the motion for summary judgment. Citing Glowacki v. A.J. Bayless Mkts., Inc., 76 Ariz. 295, 263 P.2d 799 (1953), and Restatement (Second) of Agency § 277, the court found facts "from which it could be inferred that Ft. Lowell-NSS should have known of the hazardous condition ... [and] any information which Glebe Electric had, or any knowledge it should have had, would be imputed to Ft. Lowell-NSS." Minute Entry, Feb. 24, 1989. In denying Ft. Lowell's subsequent motion for reconsideration, the trial court relied on two exceptions to the general rule that an employer of an independent contractor is not vicariously liable for the torts of that contractor. The first exception was the nondelegable duty of a possessor of land to make his premises reasonably safe for business invitees. The second exception involved an employer's nondelegable duty where the work to be performed by an independent contractor is "inherently dangerous."

Ft. Lowell then sought special action relief in the court of appeals. ¹ The court accepted jurisdiction and granted relief in part. Acknowledging the general rule that an employer of an independent contractor is not vicariously liable for the latter's negligence, the court considered the exception found in Restatement (Second) of Torts § 422 (hereafter Restatement) dealing with the liability of a possessor of land who employs an independent contractor. Adopting section 422(b) with some modification, the court held:

As we read § 422, for purposes of determining whether a landowner is liable, the contractor's conduct must be analyzed as if he were the landowner to determine whether that conduct fulfilled the landowner's duties to third persons. This would include, for example, the duty to exercise reasonable care to employ competent contractors and the duty to inspect the work of contractors. See Restatement (Second) of Torts §§ 411, 412 (1965). Construed in this manner, application of this section will not automatically result in landowner liability upon a finding that the contractor has been negligent. For purposes of determining the landowner's liability, the standard by which the contractor's conduct will be judged is that of the reasonable landowner under like circumstances, see Restatement (Second) of Torts § 283 (1965), and not the standard applicable to the contractor himself. Thus, conduct which may result in liability for the contractor because it violates the standard of care applicable to him may not result in liability to the landowner because it is consistent with the latter's duty of care. In other words, conduct which may amount to negligence on the part of the contractor may not equate to negligence on the part of the landowner.

Ft. Lowell-NSS Ltd. Partnership v. Kelly, 162 Ariz. 493, 497, 784 P.2d 699, 703 (Ct.App.1989). The court further stated:

[T]he critical inquiry is whether [the contractor], standing in the [landowner's] shoes, knew or should have known of the defective work, whether [the contractor] made such inspections as would have been reasonable for [the landowner] to have made had it retained the work in its own hands, and whether such reasonable inspections would have revealed the existence of the defective work.

Id. at 498, 784 P.2d at 704. Because no evidence was presented on these points, the court denied relief, affirming the trial court's denial of summary judgment on this issue.

In considering the second issue raised by Ft. Lowell, the court of appeals ruled that there were no facts from which the trial court could conclude that electrical work is inherently dangerous, and therefore the trial court had exceeded its authority in denying summary judgment on this issue. In effect, the court affirmed denial of summary judgment on one count and directed partial summary judgment in favor of Ft. Lowell on another.

Jula next filed a petition for review in this court, presenting two issues for our consideration:

1. Whether the court of appeals erred by severely limiting the effect of section 422(b), in an apparent conflict with division one's opinion in Koepke v. Carter Hawley Hale Stores, Inc., 140 Ariz. 420, 682 P.2d 425 (Ct.App.1984);

2. Whether the court erred in holding that work involving electrical wiring was not inherently dangerous.

We accepted review to resolve the apparent conflict between the two divisions of the court of appeals and to examine the question of a land possessor's liability for the negligence of his independent contractor. Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

JURISDICTION

As we recently stated in Alhambra School District v. Superior Court, 165 Ariz. 38, 796 P.2d 470 (1990), it is the general policy of Arizona appellate courts to decline jurisdiction when special action relief is sought from a denial of summary judgment. Id. at 40 n. 3, 796 P.2d at 472 n. 3. It is generally even more unwise to take special action jurisdiction simply to affirm the trial court's denial of summary judgment, as was done in this case.

As we have mentioned many times in the past, we do not favor special action proceedings asking the appellate system to review trial court denials of motions for summary judgment. Id. If our appellate courts were to welcome such requests, the system would be inundated by petitions from disappointed movants. Instead of a method for expeditious resolution of meritless claims, summary judgment would be transformed into a fertile field of appellate practice, further complicating our system of civil adjudication.

This case illustrates the needless burdens imposed by liberal grant of jurisdiction. Ft. Lowell requested special action relief from the court of appeals after the trial court denied its motion for summary judgment. That court accepted jurisdiction, reversing the denial of summary judgment on one count, and remanding for further proceedings, which of course would include trial. Jula then petitioned for review by this court as to the grant of partial summary judgment in favor of Ft. Lowell. Because we disagreed with the opinion of the court of appeals, we were compelled to accept jurisdiction, vacate the opinion of the court of appeals, and, finally, affirm the trial judge's denial of summary judgment. Both the court of appeals' opinion and ours accomplish the same end as the trial judge's denial of summary judgment--an order that the case be tried. However, it has taken almost two years, two appellate proceedings, and two opinions for the case to return to the trial judge's hands and be scheduled for trial.

We again caution that, except in very unusual cases, denial of summary judgment is not an appropriate matter for the exercise of special action jurisdiction. See, e.g., King v. Superior Court, 138 Ariz. 147, 149-50 and n. 3, 673 P.2d 787, 789-90 and n. 3 (1983). This is especially so when the denial is to be affirmed.

DISCUSSION

A. The Independent Contractor Rule: Historical Origin and Modern Application

Historically, although the first independent contractor cases assumed the doctrine of respondeat superior applied, subsequent cases modified this rule of liability to exempt an employer from liability for his independent contractor's negligence. ²

The independent contractor rule, as this general principle of nonliability became known, was premised both on a notion of fairness and on a policy theory of risk allocation. In an effort to undercut the rigors of the respondeat superior doctrine, the cases implicitly concluded that it would be unjust to hold an employer liable for the negligence of an independent contractor over whom he had no control. Additionally, courts noted that the employer's lack of control over the manner in which the independent contractor conducted the work rendered the undertaking essentially the contractor's enterprise...