Grewal v. North Dakota Ass'n of Counties

• Decision Date: 23 October 2003
• Docket Number: No. 20030099.,20030099.
• Citation: 670 N.W.2d 336,2003 ND 156
• Parties: Kuljit GREWAL, Plaintiff and Appellant, v. NORTH DAKOTA ASSOCIATION OF COUNTIES AND NORTHWEST CONTRACTING, INC., Defendants and Appellees.
• Court: North Dakota Supreme Court

670 N.W.2d 336

2003 ND 156

Kuljit GREWAL, Plaintiff and Appellant, v. NORTH DAKOTA ASSOCIATION OF COUNTIES AND NORTHWEST CONTRACTING, INC., Defendants and Appellees.

No. 20030099.

Supreme Court of North Dakota.

October 23, 2003.

Irvin B. Nodland, Irvin B. Nodland, Bismarck, ND, for plaintiff and appellant.

Curtis L. Wike, Fleck, Mather & Strutz, Bismarck, ND, for defendants and appellees.

SANDSTROM, Justice.

[¶ 1] Kuljit Grewal appealed from a summary judgment dismissing his negligence action against Northwest Contracting, Inc., and the North Dakota Association of Counties. We affirm the dismissal of Grewal's action against the Association of Counties, reverse the dismissal of his action against Northwest Contracting, and remand for further proceedings.

I

[¶ 2] In 1988, Grewal purchased a tract of land in northeast Bismarck. When Grewal purchased his land, the lot immediately to the west of his land was vacant. The elevation of Grewal's land was lower than the vacant lot, and on the vacant lot near the boundary with Grewal's land, there was an elevated area that the parties have referred to as "stockpiles." According to Grewal, the "stockpiles" formed a natural drainage barrier between the two lots and facilitated water drainage onto an adjacent Bismarck street. Between 1990 and 1993, Grewal built four apartment buildings on his land and had a concrete retaining wall built on the west edge of his land next to the vacant lot.

[¶ 3] In 1999, the Association of Counties purchased the vacant lot to the west of Grewal's land. The Association of Counties contracted with AWBW, Inc., for architectural services to plan and design an office building on the land. The Association of Counties contracted with Northwest Contracting for construction of the office building, and Northwest Contracting subcontracted with Allan Dukart, doing business as DDR, for excavation, backfill, compaction, and landscaping for the building. During the course of the excavation and landscaping, the "stockpiles" were removed from the Association of Counties' property. In June 2001, after the "stockpiles" had been removed and while construction of the building was ongoing, a severe rainstorm resulted in excessive water and mud runoff from the construction site onto Grewal's land. Grewal claims the runoff destroyed the retaining wall and deposited mud on his property.

[¶ 4] Grewal sued the Association of Counties and Northwest Contracting, alleging Northwest Contracting failed to properly safeguard his property when it altered and modified the existing water drainage topography, causing excessive runoff onto his property. Grewal claimed the Association of Counties was liable for damage caused by its agents and for its own negligent acts in failing to safeguard his property from excessive runoff during the construction work, and Northwest Contracting was liable for damage caused by its negligent construction on the property.

[¶ 5] The trial court granted summary judgment dismissing Grewal's action. The court concluded Grewal had failed to raise a genuine issue of material fact as to whether the Association of Counties retained control over the work done by Northwest Contracting. The court also concluded Grewal failed to present evidence to show Northwest Contracting retained control over DDR's excavation work and Grewal provided no evidence that Northwest Contracting actually directed DDR in the manner, method, or operative details of the work. Grewal appealed.

[¶ 6] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Grewal's appeal is timely under N.D.R.App.P. 4(a)(1). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 7] We review this appeal under our standards for summary judgment, which is a procedure for the prompt resolution of a controversy on the merits without a trial if the evidence demonstrates there are no disputed issues of material fact or inferences to be drawn from undisputed facts, and if the evidence shows a party is entitled to judgment as a matter of law. Bender v. Aviko, 2002 ND 13, ¶ 4, 638 N.W.2d 545. Whether a trial court properly grants summary judgment is a question of law, which we review de novo on the entire record. Fetch v. Quam, 2001 ND 48, ¶ 8, 623 N.W.2d 357. A party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding the existence of a material fact. Id. at ¶ 9. On appeal, we view the evidence in the light most favorable to the party opposing the motion. Id. at ¶ 8. A party resisting a motion for summary judgment may not simply rely on unsupported and conclusory allegations or denials in the pleadings; rather, that party must set forth specific facts, whether by affidavit or by directing the court to relevant evidence in the record demonstrating a genuine issue of material fact. Lawrence v. Roberdeau, 2003 ND 124, ¶ 7, 665 N.W.2d 719.

III

[¶ 8] Grewal argues the trial court erred in granting summary judgment, because the Association of Counties and Northwest Contracting retained control over the construction site and were liable for any damage caused by their own negligence or the negligence of their subcontractor.

[¶ 9] Negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty. Gullickson v. Torkelson Bros., Inc., 1999 ND 155, ¶ 7, 598 N.W.2d 503. To establish a cause of action for negligence, a plaintiff must show the defendant has a duty to protect the plaintiff from injury. Pechtl v. Conoco, Inc., 1997 ND 161, ¶ 7, 567 N.W.2d 813. Whether a duty exists is generally a preliminary question of law for the court to decide. Id. If, however, the existence of a duty depends upon the resolution of factual issues, the facts must be resolved by the trier of fact. Id.

[¶ 10] Under North Dakota law, an employer of an independent contractor generally is not liable for the acts or omissions of the independent contractor. Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 14, 623 N.W.2d 382. However, Restatement (Second) of Torts § 414 (1965) provides an employer may be liable for an independent contractor's work if the employer retains control over the independent contractor's work:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

[¶ 11] The duty created by Section 414 may arise through an express contractual provision retaining the right to control some part of the operative details of the independent contractor's work, or through the employer's actual exercise of retained control of the work. Rogstad, 2001 ND 54, ¶ 16,623 N.W.2d 382. Grewal does not rely upon any express contractual provisions for retained control of some part of the operative details of the independent contractor's work. Rather, he relies upon the employer's actual exercise of control of the work and argues the retained control exception is clearly applicable to this case.

[¶ 12] In Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 448 (N.D.1994), this Court explained the degree of retained control necessary to impose a duty on an employer of an independent contractor:

The liability created by Section 414 arises only when the employer retains the right to control the method, manner, and operative detail of the work; it is not enough that the employer merely retains the right to inspect the work or to make suggestions which need not be followed. Comment c to Section 414 explains the difference:

"In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way."

A

[¶ 13] Grewal claims the Association of Counties had plans and specifications for construction of the office building prepared and those plans included removing the stockpiles. He argues his damages were caused by negligence designed into the plans provided by the Association of Counties. He also argues the Association of Counties retained control over the worksite and was liable for any damage caused by its own negligence or its subcontractor's negligence.

[¶ 14] According to an affidavit of Mark Johnson, the executive director of the Association of Counties, the Association of Counties contracted with AWBW to design the building and with Northwest Contracting to construct the building, because the Association of Counties was not in the business of designing and constructing buildings. According to Johnson, the Association of Counties did not direct or control the method and manner of the work of either AWBW or Northwest Contracting, and the method and manner of excavation, backfill, trenching, or compaction was not directed by the Association of Counties. According to an affidavit of Jerry Splonskowski, the secretary of Northwest Contracting, the Association of Counties provided no labor or materials for the work and did not control the method or manner of the work of Northwest Contracting or any subcontractors.

[¶ 15] Grewal has not presented any competent admissible evidence by affidavit or...