Gneiting v. Idaho Asphalt Supply, Inc.

• Citation: 941 P.2d 932,130 Idaho 393
• Decision Date: 05 May 1997
• Docket Number: No. 22534,22534
• Parties: Dale L. GNEITING, Plaintiff-Appellant, v. IDAHO ASPHALT SUPPLY, INC., an Idaho corporation, Defendant-Respondent, and Salt Creek Welding, Inc., a Wyoming corporation, Defendants.
• Court: Idaho Court of Appeals

Page 932

941 P.2d 932

130 Idaho 393

Dale L. GNEITING, Plaintiff-Appellant, v. IDAHO ASPHALT SUPPLY, INC., an Idaho corporation, Defendant-Respondent, and Salt Creek Welding, Inc., a Wyoming corporation, Defendants.

No. 22534.

Court of Appeals of Idaho.

May 5, 1997.

Hiller, Benjamin & Associates, Idaho Falls; Anderson Nelson Hall Smith, Idaho Falls, for appellant. Marvin M. Smith argued, Idaho Falls.

Hopkins, Roden, Crockett, Hansen & Hooper, Idaho Falls, for respondents. Katherine S. Moriarty argued, Idaho Falls.

LANSING, Judge.

This is an appeal from a district court's order granting the defendant's motion for summary judgment in a personal injury action. The plaintiff-appellant was an employee of an independent contractor and was seriously injured while working on the defendant's property. The district court held that the defendant did not owe the contractor's employee a duty of care. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Defendant Idaho Asphalt Supply, Inc., is engaged in the business of formulating and selling asphalt products. In August of 1992, Idaho Asphalt contracted to purchase from Salt Creek Welding, Inc. two used petroleum storage tanks Gneiting has raised two issues on appeal. First, he contends that the district court applied the wrong standard to determine whether Idaho Asphalt owed him a duty of care. Second, he argues that the district court erred in holding that Gneiting presented insufficient evidence to raise a factual issue regarding whether Idaho Asphalt exercised control over the construction project.

each with a capacity of 15,000 barrels. The contract required that Salt Creek disassemble, transport, and reassemble the storage tanks at Idaho Asphalt's facility near Blackfoot, Idaho. The contract also required that Salt Creek supply all of the tools, equipment and labor for the project. Salt Creek hired Dale Gneiting to work as one of its welders on the reassembly phase of the project. In the course of that work, Gneiting was severely injured when a piece of equipment on which he was standing became detached from a crane and fell thirty feet to the ground. Subsequently, Gneiting filed a personal injury action against Idaho Asphalt and Salt Creek. The claim against Salt Creek was dismissed without prejudice and is not at issue in this appeal. Idaho Asphalt filed a motion for summary judgment, which was granted by the district court. The court concluded that Idaho Asphalt owed no duty of care to Gneiting, and therefore bore no liability, because uncontroverted evidence established that Idaho Asphalt did not have control over the work being performed on the tank construction project or over the equipment that caused Gneiting's injury.

ANALYSIS

Under common law principles governing liability for negligence, no liability arises unless the individual from whom relief is sought owed a duty of care to the injured party. Vickers v. Hanover Const. Co., 125 Idaho 832, 835, 875 P.2d 929, 932 (1994); Bowling v. Jack B. Parson Cos., 117 Idaho 1030, 1032, 793 P.2d 703, 705 (1990). Generally, a principal is not liable for the torts of an independent contractor. ¹ Gates v. Pickett & Nelson Construction Co., 91 Idaho 836, 842, 432 P.2d 780, 786 (1967); Sloan v. Atlantic Richfield Co., 552 P.2d 157, 160 (Alaska 1976); Horner v. Hammons, 916 S.W.2d 810, 814 (Mo.Ct.App.1995); W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 71 (5th ed.1984); RESTATEMENT (SECOND) OF TORTS § 409 (1965). The most widely accepted explanation for this rule is that since the principal has no right of control over the manner in which the independent contractor's work is to be done, the contractor, rather than the principal, is the proper party to be charged with the responsibility for preventing the risk, and bearing and distributing it. PROSSER AND KEETON, supra; RESTATEMENT (SECOND) OF TORTS § 409 cmt. b. It follows that this general rule on nonliability is inapplicable when the principal actually retains control of the manner, means or method of performance of work undertaken by the contractor. Vickers, 125 Idaho at 836, 875 P.2d at 933; Gates, supra; Sloan, supra; Horner, supra; RESTATEMENT (SECOND) OF TORTS § 414. If the principal owns the premises where the work is being done and remains in control of the premises, he also owes the employees of the contractor a duty to exercise ordinary care in the management and inspection of the premises to keep the premises in reasonably safe condition and to warn of concealed dangers which are known to the owner or could be discovered by the exercise of reasonable care. Walton v. Potlatch Corp., 116 Idaho 892, 898 & n. 2, 781 P.2d 229, 234 & n. 2 (1989).

In this case, Gneiting argues that the district court applied an incorrect and overly restrictive standard in determining whether Idaho Asphalt had retained or exercised the degree of control necessary to incur liability for Gneiting's injuries. In its memorandum decision granting summary judgment, the district court indicated that Idaho Asphalt would bear liability only if it maintained "exclusive control" over all aspects of Salt Creek's performance on the tank assembly project. We agree with Gneiting's position that the district court employed the wrong standard.

In identifying exclusive control as the standard, the district court relied on Vickers v. Hanover Const. Co., 125 Idaho 832, 875 P.2d 929 (1994), where the Idaho Supreme Court dealt with essentially the same question presented here--whether owners or occupiers of property owe a duty of care to the employees of an independent contractor. In Vickers, a landowner contracted with a general contractor for the construction of an apartment complex. The framing subcontractor, Pyramid, contracted with Weightman, an independent contractor, for construction of some of the framing. Weightman, in turn, hired Vickers to help frame the buildings. Vickers died as a result of injuries sustained while working on the construction project. In a subsequent action brought against the landowner and the general contractor by Vickers' survivors, the trial court granted summary judgment on the ground that neither of those defendants owed a duty of care to Vickers. The Supreme Court affirmed the summary judgment on appeal, holding that the plaintiffs failed to refute the defendants' evidence that the subcontract between the general contractor and Pyramid gave Pyramid "exclusive control over all aspects of the means, manner and method of performance of the work to be performed under the framing contract." In the present case, it appears that the district court interpreted Vickers to mean that the landowner or principal will not bear liability for an on-the-job injury to the employee of an independent contractor unless the landowner/principal has retained "exclusive control" over all aspects of the work.

In our view, this was not a correct reading of Vickers. Rather, the Court in Vickers was simply explaining that the subcontract in that case gave exclusive control over the framing work to the framing subcontractor. Because the plaintiffs had not controverted the defendants' evidence that all control was relinquished to the framing subcontractor, the plaintiffs did not meet their burden to show that the defendants had retained any degree of control upon which they could be charged with a duty of care to the decedent.

The relevant standard in determining whether the landowner or other principal owes a duty of care to the employees of an independent contractor is "control," not "exclusive control." In Gates, 91 Idaho at 842, 432 P.2d at 786, the Idaho Supreme Court described the rule as one allowing liability where the principal "retains or exercises control over the work of the subcontractor or his servant, other than a limited power of general supervision for the purpose of seeing that the subcontractor did the work properly according to the plans and specifications." Likewise, in Vickers, the Court stated that the question whether the owner or general contractor owed the decedent a general duty of ordinary care "turns on the issue of control." Although the level of control necessary to impose liability is something less than exclusive control, as indicated in Gates, the principal's degree of control must go beyond mere inspections to assure compliance with the contract. In Vickers, the Supreme Court held that a right of inspection to determine whether the contractor's work conformed to contract specifications was a degree of control that was insufficient to create a duty of care on the part of the principal. Vickers, 125 Idaho at 836, 875 P.2d at 933.

With the appropriate standard in mind, we must review the record to determine whether the evidence before the district court warranted summary judgment in favor of Idaho Asphalt. Idaho Rule of Civil Procedure 56(c) requires the trial court to enter summary judgment "if the pleadings, depositions, and admissions on file, together with the affidavits, if any,...