Gonzalez v. Russell Sorensen Constr.

• Decision Date: 24 May 2012
• Docket Number: No. 20100671–CA.,20100671–CA.
• Citation: 709 Utah Adv. Rep. 19,2012 UT App 154,279 P.3d 422
• Parties: Jose M. GONZALEZ, Plaintiff and Appellee, v. RUSSELL SORENSEN CONSTRUCTION, Defendant and Appellant.
• Court: Utah Court of Appeals

279 P.3d 422

709 Utah Adv. Rep. 19

2012 UT App 154

Jose M. GONZALEZ, Plaintiff and Appellee,

v.RUSSELL SORENSEN CONSTRUCTION, Defendant and Appellant.

No. 20100671–CA.

Court of Appeals of Utah.

May 24, 2012.

Barbara K. Berrett and Mark D. Taylor, Salt Lake City, for Appellant.

William J. Hansen, Karra J. Porter, and Tyler V. Snow, Salt Lake City, for Appellee.

Before Judges McHUGH, VOROS, and CHRISTIANSEN.

OPINION

VOROS, Associate Presiding Judge:

¶ 1 This is an appeal from the denial of a summary judgment motion. The case involves a workplace injury claim brought by a subcontractor's employee against the general contractor. The appeal focuses on a general contractor's potential liability for injuries allegedly resulting from a hazardous condition on the job site.

¶ 2 The general contractor is Appellant Russell Sorensen Construction (Sorensen); the subcontractor is John Clayton Construction (Clayton); the injured employee is Appellee Jose M. Gonzalez (Gonzalez). After falling from some scaffolding, Gonzalez sued Sorensen and others. Sorensen moved for summary judgment and the trial court denied the motion. We granted leave to appeal this interlocutory order and now affirm.

BACKGROUND ¹

¶ 3 Sorensen was the general contractor for a Planned Unit Development (PUD) known as Orchard Vista (the Project) in Midvale, Utah. Sorensen hired Clayton to install siding, soffit, and fascia.² Clayton employed Gonzalez. While Gonzalez was standing on some scaffolding, a piece of aluminum J-molding he was holding came into contact with high-voltage power lines. The power lines hung within ten feet of the roof of the building, and thirty-seven inches from the scaffolding. Gonzalez fell eighteen feet, sustaining injuries.

¶ 4 Gonzalez sued several parties, including Sorensen. In his amended complaint, he alleged generally that the defendants breached their duty of care by failing to “give [Gonzalez] any warning of the dangerous power lines and their close proximity to the site where [Gonzalez's] work was to be performed”; failing to “affirmatively or constructively notify him that it was unsafe to work on the scaffolding”; failing to “have the power turned off or protective barriers installed around the power lines prior to allowing persons to work in close proximity to the power lines”; “[f]ailing to properly exercise and maintain a place of employment which was free from recognized hazards that were likely to cause death or serious physical harm to individuals working at the [p]roperty”; “[f]ailing to enforce safety regulations on the Project”; and “[f]ailing to ensure that the development of the [Project] did not encroach upon the electrical lines lining the [p]roperty, or that proper safety measures regarding power lines were followed.”

¶ 5 After the close of discovery, Sorensen moved for summary judgment. Sorensen contended that, as a general contractor, it could not be liable for a workplace injury suffered by Clayton's employee unless Sorensen had exercised direct control over the injury-causing aspect of the work. Furthermore, Sorensen contended, the amended complaint failed to give notice of a premises liability claim or allege that Sorensen owned or possessed the property where the injury occurred.

¶ 6 The trial court denied Sorensen's motion. The court concluded that “when an owner relinquishes control of property to a general contractor, that contractor must be responsible for any conditions it creates on the property, specifically, in this matter, the constructing of a building and its resulting conditions.” The court expressly approved and applied section 384 of the Restatement (Second) of Torts. The court ruled that “disputed issues of material fact with respect to whether [Sorensen] created a dangerous condition on the premises and further, whether [Sorensen] took reasonable steps to protect invitees, preclude[ ] summary judgment.”

ISSUES AND STANDARD OF REVIEW

¶ 7 Sorensen asserts two challenges to the trial court's order denying summary judgment. First, Sorensen contends that Gonzalez's amended complaint failed to sufficiently plead the theory of premises liability, barring him from raising that theory in his memorandum in opposition to summary judgment. Second, Sorensen contends that the trial court erroneously relied on section 384 of the Restatement (Second) of Torts to conclude that Sorensen owed a duty of care to Gonzalez as an employee of an independent contractor.

¶ 8 “Summary judgment is appropriate only upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5, 178 P.3d 343 (citation and internal quotation marks omitted); see alsoUtah R. Civ. P. 56(c). “An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness.” Bingham v. Roosevelt City Corp., 2010 UT 37 ¶ 10, 235 P.3d 730 (citation and internal quotation marks omitted).

ANALYSIS

I. Gonzalez's Amended Complaint Gave Adequate Notice of His Claim.

¶ 9 Sorensen challenges the trial court's denial of summary judgment on the ground that Gonzalez's amended complaint failed to give notice of his premises liability claim. A claim of relief must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Utah R. Civ. P. 8(a).³ The Utah Supreme Court has “consistently noted that Utah's notice pleading requirements are liberal.” Gudmundson v. Del Ozone, 2010 UT 33, ¶ 40, 232 P.3d 1059. “[A]ll that is required is that the pleadings be sufficient to give fair notice of the nature and basis of the claim asserted and a general indication of the type of litigation involved.” Id. (internal quotation marks omitted). The issue, then, is whether Gonzalez's amended complaint gave “fair notice of the nature and basis of the claim” and “a general indication of the type of litigation involved.” Seeid. ¶ 40 (citation and internal quotation marks omitted).

¶ 10 Sorensen contends that Gonzalez's amended complaint was deficient under rule 8 for two reasons.⁴ First, it argues that Gonzalez's premises liability claim was not pleaded in the amended complaint, but raised for the first time in his memorandum opposing summary judgment. Because the premises liability argument was not pleaded, Sorensen argues, the trial court should not have considered it. Second, Gonzalez “fail [ed] to allege that [Sorensen] owned or possessed the property at issue,” an allegation that, according to Sorensen, was required to state a premises liability claim.

¶ 11 First, we do not agree that Gonzalez's amended complaint does not plead a premises liability claim. Sorensen relies on Gudmundson v. Del Ozone, 2010 UT 33, 232 P.3d 1059.Gudmundson involved a products liability claim in which the plaintiff, a state prison employee who supervised a laundry facility, alleged that a defective ozone generator caused her injuries from ozone overexposure. Seeid. ¶¶ 3–5. The complaint asserted several claims based on the theory that ozone overexposure had caused the plaintiff's injuries. Seeid. ¶¶ 6, 41. As the court explained, “[n]ot until her memorandum in opposition to summary judgment did she argue that ozone combined with other chemicals present in the laundry facility caused ... her to develop symptoms indicative of chemical toxicity.” Id. ¶ 41 (emphasis added). This argument amounted to a new theory of causation that “depend[ed] on different factual theories and present[ed] different types of legal liability.” Id. The plaintiff's original claim—that ozone overexposure had caused her injuries—would be a strict liability claim if the ozone generator was found to be defective, while her subsequent theory of causation—that “the presence of ozone combined with other chemicals ordinarily present in a laundry facility” caused her injuries—“sounds in negligence.” Id.

¶ 12 Here, Gonzalez's memorandum in opposition to summary judgment did not assert a different type of legal liability than that asserted in his amended complaint. In his amended complaint, Gonzalez asserted that the defendants (including Sorensen) breached their duty of care by failing to maintain a workplace free from hazards, failing to ensure that the building did not encroach upon the electrical power lines, failing to enforce safety measures such as insulating or cutting off power to the electrical lines, failing to warn Gonzalez of the power lines and their proximity to his work site, and allowing workers to work less than ten feet from the power lines. In his memorandum in opposition to summary judgment, Gonzalez asserted that Sorensen committed “direct, independent acts of negligence.” These included constructing the building too close to the power lines and then failing to take reasonable steps to rectify the hazardous condition, such as relocating the power lines, insulating or “de-energizing” them while workers were present, or warning subcontractors of the danger they posed. While these two descriptions of the alleged negligent acts are not identical, we do not agree that the allegations in the memorandum so depart from the pleaded claim as to deny Sorensen “fair notice of the nature and basis of the claim” and “a general indication of the type of litigation involved.” See Gudmundson, 2010 UT 33, ¶ 40, 232 P.3d 1059 (citation and internal quotation marks omitted).

¶ 13 Second, Sorensen argues that the amended complaint “fails to allege that [Sorensen]owned or possessed the property at issue.” That failure, argues Sorensen, was fatal to a premises liability claim. Gonzalez acknowledges that the complaint did not allege that Sorensen owned the property. Indeed, Gonzalez states, “such an allegation would have been incorrect.” Rather, Gonzalez's argument is that Sorensen's duty as general contractor was analogous to the duty owed by an owner or possessor as described in section 384 of the Restatement...