Greenwell v. Meredith Corp.

• Decision Date: 09 September 1971
• Docket Number: No. 54585,54585
• Citation: 189 N.W.2d 901
• Parties: Jerry GREENWELL, Appellant, v. MEREDITH CORPORATION et al., Appellees.
• Court: Iowa Supreme Court

Page 901

189 N.W.2d 901

Jerry GREENWELL, Appellant, v. MEREDITH CORPORATION et al., Appellees.

No. 54585.

Supreme Court of Iowa.

Sept. 9, 1971.

Louis A. Lavorato and Williams & Hart, Des Moines, for appellant.

Thomas A. Finley and Duncan, Jones, Riley & David, Des Moines, for appellees.

REES, Justice.

This is a negligence case for injuries sustained by plaintiff while working in the publishing plant of defendant. Plaintiff brought a law action on the theory defendant was negligence in failing to provide a safe place for the plaintiff to perform work while plaintiff was an employee of Iowa Sheet Metal Contractors. Services of plaintiff's employer had been retained to install a blower in the business premises of defendant. Trial was had to a jury and at the close of plaintiff's case a verdict was directed in favor of defendant. A motion for new trial later filed by plaintiff was overruled. We reverse.

In his petition plaintiff alleges that on June 17, 1966 while in the employ of Iowa Sheet Metal Contractors he sustained injuries as a consequence of a fall from a ladder on the premises of defendant Meredith Corporation, which the parties agree is the successor in interest of the other two defendants. Defendant had secured the services of plaintiff's employer to make certain changes in the trimmer waste system at defendant's plant, including the making of an opening in a wall for a blower mouth. Plaintiff contends that while working on a ladder for the purpose of making an opening in a wall, the ladder slipped away from the wall causing plaintiff to fall a distance of 16 to 18 feet to the floor below. He asserts defendant was negligent in:

(a) failing to provide a safe place for him to perform the work; (b) failing to warn him (the plaintiff) of the danger from the slippery floor and from materials and air being propelled through a blower against the ladder on which he was working; (c) failing to shut off the air being propelled through said blower and permitting said waste material to be propelled into the room striking the ladder plaintiff was working upon; and, (d) allowing the floor upon which the ladder was resting to be in a slippery and dangerous condition from an accumulation of gluey, waxy and starchy materials.

In its answer, defendant asserted it owed no duty to the plaintiff in any of the particulars specified in the petition as plaintiff was an employee of an independent contractor who was in full charge of all details of the work to be performed, and because the alleged hazards referred to in plaintiff's petition were open and obvious and were understood and appreciated by plaintiff. Defendant further asserts plaintiff was guilty of contributory negligence precluding him from recovering damages, and that any hazards as may have existed in connection with the carrying on of the work were open and obvious and as apparent to plaintiff as they were to defendant. It further avers the hazards were understood and appreciated by plaintiff and that plaintiff assumed the risk of injury and is thereby precluded from recovery.

This appeal comes to us on 16 claimed errors; however, we conclude the assigned errors present six basic areas for consideration: (1) the determination of plaintiff's status while on defendant's premises, and what duty, if any, was owed plaintiff by defendant; (2) whether the trial court erred when it ruled as a matter of law that a jury question had not been generated on the question of defendant's negligence; (3) whether defendant's negligence, if any, was the proximate cause of plaintiff's injuries; (4) whether the trial court erred when it ruled as a matter of law that plaintiff was contributorily negligent and was thereby barred from recovering; (5) whether the trial court erred when it held as a matter of law that plaintiff had assumed the risk; and (6) whether the trial court erred in excluding the opinion testimony of plaintiff's lay witness, one Blythe.

I. Defendant's motion for a directed verdict was dictated into the record at the close of plaintiff's evidence, and embraced multiple grounds. The resistance to the motion for directed verdict was likewise dictated into the record. Although the motion involved separate grounds or parts, the several grounds were not ruled on separately but the motion to direct was sustained generally irrespective of the requirements of rule 118, Rules of Civil Procedure. We are therefore unable to divine which grounds were upheld and as a consequence the record before us is unduly long and extended. Counsel and this court are entitled to know the grounds upon which a motion to direct is sustained so that arguments on appeal may be confined to those grounds. The motion for a new trial filed later was overruled generally without reference being made to the separate grounds or parts irrespective of the fact that the motion for new trial involved several grounds. While we have declined to reverse in any case for the trial court's non-compliance with rule 118, R.C.P., we shall henceforth insist that the rule be strictly complied with to avoid necessity of appellants arguing each and every ground of a motion to direct a verdict, and shall require trial courts to make clear to parties and to this court what grounds of the motion were sustained so that arguments on appeal can be confined and limited thereto.

II. Our review in this appeal is on assigned errors, and in considering the sufficiency of the evidence of the negligence of the defendant as against the motion for a directed verdict, we must view the evidence in the light most favorable to the plaintiff. Rule 344(f) 2, R.C.P.; Ling v. Hosts, Inc., 164 N.W.2d 123, 124 (Iowa 1969); McWilliams v. Beck, 220 Iowa 906, 909, 262 N.W. 781, 782. As to the review of the trial court's ruling on plaintiff's motion for a new trial, we recognize the trial court had a broad but not unlimited discretion in determining whether the disposition of the case effectuated substantial justice between the parties. .

III. Turning now to the determination of the status of plaintiff, we observe plaintiff was employed by and under the direct supervision of Iowa Sheet Metal Contractors who had independently contracted to perform work for defendant. Defendant had furnished the plans and specifications to Iowa Sheet Metal Contractors, but Iowa Sheet Metals retained control of the performance of the service and was indisputably an independent contractor. In determining whether a person is an independent contractor or an employee we look first as to who has the right to control the physical conduct of the service. If this control is vested in the person giving service, he is an independent contractor; if it is vested in the employer, then the person rendering the service is an employee. Sanford v. Goodridge, 234 Iowa 1036, 1042, 13 N.W.2d 40, 43; Schlotter v. Leudt, 255 Iowa 640, 643, 123 N.W.2d 434, 436--437; Banks v. Carrell, 241 Iowa 786, 795, 43 N.W.2d 142, 147--148; 41 Am.Jur.2d, Independent Contractors, section 1, pp. 437--439.

In Hanson v. Town & Country Shopping Center, Inc., 259 Iowa 542, 546, 144 N.W.2d 870, 873, this court said, 'An invitee is either a public invitee or a business visitor. A business visitor is a person who is invited to either or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.' See Restatement, Second, Torts, § 332; see also Bradt v. Grell Const., Inc., 161 N.W.2d 336, 346 (Iowa 1968); Meader v. Paetz Grocery Co., Inc., 259 Iowa 1101, 1105, 147 N.W.2d 211, 215.

The evidence in this case clearly establishes the independent contractor (Iowa Sheet Metal Contractors) was a business invitee. The real issue is whether the plaintiff as an employee of an independent contractor comes within the business-invitee class.

Defendant contends the general rule is that the owner of premises is not liable for injuries to employees of independent contractors and owed no special duty of care to provide a safe place for the plaintiff to work, citing Reilly v. C. & N.W. Ry., 122 Iowa 525, 98 N.W. 464, and Humpton v. Unterkircher & Sons, 97 Iowa 509, 66 N.W. 776. The last referred to cases involved injuries resulting solely from the negligence of an independent contractor. In Loveless v. Town of Wilton, 193 Iowa 1323, 1331, 188 N.W. 874, 877, this court held an employee of an independent contractor, hired by the owner of the premises, is within the business-invitee class while on the premises of the owner. A contractee is liable for injuries sustained during the course of his employment by a servant of an independent contractor or subcontractor by reason of the negligence of the contractee, or of his servants acting within the scope of their employment, or by the combined fault of the contractor and contractee. 57 C.J.S. Master and Servant § 601, p. 373, and cases therein cited. The weight of authority supports the rule that, independently of contract or statute, one who is having work done on his premises by an independent contractor is under the obligation to use ordinary care to keep the premises in a reasonably safe condition for the servants of the contractor * * *. See 57 C.J.S. Master and Servant § 603, pp. 374, 375.

'An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and risk involved therein. Therefore an invitee is not required to be on the alert to discover defects * * *.' Restatement, Second, Torts, section 343, comment (d), p. 217.

'A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.' Restatement, Second, Torts, section 343A, p. 218. See...