Gordon v. Matson, 5--4646
| Decision Date | 01 April 1969 |
| Docket Number | No. 5--4646,5--4646 |
| Citation | 246 Ark. 533,439 S.W.2d 627 |
| Parties | Frank GORDON et al., Appellants, v. Russell H. MATSON, Jr., et al., Appellees. |
| Court | Arkansas Supreme Court |
Travis Mathis and McMillan, McMillan & Turner, Arkadelphia, for appellants.
Wright, Lindsey & Jennings, Little Rock, for appellees.
This case comes on appeal from an order of the circuit court granting summary judgment to the appellee pursuant to a motion for summary judgment filed.
The complaint was filed in November 1965 and amended in March 1966. The original defendant, Matson, filed a general denial and the intervenor, Travelers Insurance Company, filed motion to make more definite and certain.
The defendant responded to the intervention and propounded interrogatories to which Travelers responded. The plaintiff also propounded interrogatories to which responses were made and the defendant interrogated the plaintiff and the complaint was again amended, this last amendment setting forth certain specific allegations of alleged noncompliance by the defendant with provisions of Act No. 161 of 1937 and the Safety Code promulgated pursuant to the Act.
A pretrial order was entered by the trial court, which order found that certain facts were undisputed and set forth the claims of the parties and enumerated the legal issues and fact issues, this order being entered July 11, 1967.
Subsequent to entry of the pretrial order the defendant moved for a summary judgment and the plaintiff and intervenor responded denying that there was no genuine issue as to material fact. On September 21, 1967, the trial court entered its order granting the motion for summary judgment from which comes this appeal.
The undisputed facts, as found in the pretrial order, indicate that the defendant, Matson, contracted with Trustees of Henderson State College to construct a building and subcontracted to Cook & Sons (whose Workmen's Compensation Carrier is the intervenor, Travelers) the masonry work and the plaintiff, Gordon, was an employee of Cook and injured in the scope of his employment on August 22, 1963, while engaged in removing materials in a buggy from the floor of a portable hoist device known as a 'lad-E-vator' owned, maintained, erected, positioned and operated by Cook. The exhibits include the prime contract to Matson and subcontract with Cook. The prime contract is in AIA standard form and contains provisions regarding compliance with safety codes. The subcontract obligates the subcontractor to discharge the provisions of the prime contract as it relates to the work of the subcontractor.
The amended complaint alleges that the defendant, Matson, was obligated to provide to employees of Cook a safe place to work and to respond in damages if, as is alleged, there was noncompliance with the provisions of the Safety Code promulgated under Arkansas Statutes 81--101 on theory that responsibility ultimately rests on the prime contractor for assuring compliance with the Code by subcontractors in order to satisfy the obligation of the prime contractor to provide a safe place to work and further alleges that this responsibility included providing stationary platform, toe boards and guard rails and that these safety devices did not exist at the place of employment of the plaintiff and that his injuries resulted from their absence, or would not have occurred had they been present. Specifically it is also alleged that the space between the building under construction and the elevator hoist was spanned by a removable plyboard slab and the absence of a fixed, stationary platform at this construction level was the responsibility of the defendant, Matson, and that its absence caused or contributed to cause the injuries.
The undisputed facts as shown by the pretrial order are to the effect that the plaintiff employee of the subcontractor, sustained injuries in a fall from the third floor level, that the space between the construction and the hoist was bridged by a plywood board and that the hoist had been located and was under the exclusive control of the subcontractor in its operation and had been provided by him. It is conceded that the prime contractor did not exercise any supervision or control of any of these activities by the subcontractor or his employees.
We are therefore forced to the conclusion that unless the trial court has erred in its legal conclusion based upon the undisputed facts established by the pretrial order then the order granting summary judgment must be affirmed. Epps v. Remmel, 237 Ark. 391, 373 S.W.2d 141; Jones v. Comer, 237 Ark 500, 374 S.W.2d 465.
It appears to be the general rule that the responsibilities of the prime contractor to employees of the subcontractor on the job are comparable to the duties of the owner of the premises. This is a duty to exercise ordinary care and to warn in the event there are any unusually hazardous conditions existing which might affect the welfare of the employees. The recognized exception occurs if the prime contractor has undertaken to perform certain duties or activities and negligently fails to perform them thereafter or perform them in a negligent manner. Aluminum Ore. Co. v. George, 208 Ark. 419, 186 S.W.2d 656.
Then unless the Legislative enactments, Arkansas Statutes Section 81--101 et seq. or the contract with the owner create liability to the plaintiff under the particular circumstances existing here it does not appear that there is liability on the part of the prime contractor.
Section 81--120 contains provisions for penalties resulting from violation of the Act or rules issued by the Commissioner of Labor and provides for recovery of these penalties in criminal proceedings or by a civil action brought in the name of the State. The Act being penal in nature should be strictly construed. The Act contains no language indicating any intent on the part of the Legislature to alter the existing law with respect to division of duties and responsibilites between prime and subcontractors and we therefore conclude that Section 81--101 does not arbitrarily place responsibility for compliance upon the prime contractor.
We find no basis for holding that the defendant, Matson, by contracting with the owner for construction of the improvements and to protect the owner from liability arising from the work thereby also assumed the position of an insurer of the safety of employees of a subcontractor where his own employer is legally and contractually obligated in these matters by provision of the Statute, Section 81--101, and the contract with Matson. To hold the prime contractor responsible to assure compliance by all subcontractors by actual physical inspection and direction would be to write for the parties a contract different from that into which they entered and would destroy the relationship of independent contractor existing between them.
We therefore conclude no error occurred and the judgment ought to be affirmed.
BROWN, J., disqualified.
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...or incompetent [2012 Ark. 13]independent contractor when the employer was negligent in hiring the contractor.”); Gordon v. Matson, 246 Ark. 533, 536, 439 S.W.2d 627, 629 (1969) (recognizing that an employer may be responsible for the negligence of an independent contractor, if the employer ......
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...or unusually hazardous conditions. Jackson v. Petit Jean Electric Co-op., 270 Ark. 506, 606 S.W.2d 66 (1980) (citing Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969)). Furthermore, the duty of an employer of an independent contractor to use ordinary care or to warn of latent dangers do......
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