Hill v. Pacific Power & Light Co., 88-136

• Citation: 765 P.2d 1348
• Decision Date: 13 December 1988
• Docket Number: No. 88-136,88-136
• Parties: Cecil HILL, Appellant (Plaintiff), v. PACIFIC POWER & LIGHT CO., Appellee (Defendant).
• Court: United States State Supreme Court of Wyoming

Page 1348

765 P.2d 1348

Cecil HILL, Appellant (Plaintiff), v. PACIFIC POWER & LIGHT CO., Appellee (Defendant).

No. 88-136.

Supreme Court of Wyoming.

Dec. 13, 1988.

Donald L. Painter, Casper, for appellant.

Jeffrey J. Gonda of Lonabaugh and Riggs, Sheridan, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Appellant Cecil Hill filed a negligence action to recover damages for injuries he received in an industrial accident at the Jim Bridger Power Plant (Plant) in Sweetwater County, Wyoming. The plant is owned by appellee Pacific Power & Light Company (PP & L). Hill appeals the district court's order granting summary judgment to PP & L which was based on PP & L's showing that Hill was employed by an independent contractor when he was injured, and on Hill's failure to refute PP & L's showing that it did not assume affirmative duties with respect to safety or retain control over the details of the work that caused Hill's injury.

We affirm.

During March 1986, Hill worked at the Plant as a journeyman plumber for the North American Energy Services Corporation (NESCO), a services contractor for PP & L. The services contract between the two companies expressly stated that NESCO was an independent contractor for all work it performed at the Plant. Under the contract, PP & L was to identify work to be done at the Plant and then instruct NESCO on how it wanted that work completed. NESCO, in turn, was to employ and direct persons to do that work as PP & L instructed. NESCO expressly retained the right to control the persons it hired and sign their paychecks and was obligated to maintain state worker's compensation insurance for them. PP & L retained the right to inspect the work being done by NESCO employees and obligated itself to supply some tools, equipment, materials, and facilities necessary to complete the work.

Hill was injured at the Plant on March 26, 1986. While standing on some scaffolding, he tried to hand a torch to another employee and the handrail he was holding onto with his other hand broke loose causing him to fall to the ground below. Hill testified in his deposition that, on the day he fell, the scaffolding appeared be in a different place than it was the day before. He agreed that the handrail might have been removed by NESCO carpenters during the previous evening of March 25, 1986 and may not have been properly wired back onto the scaffolding when replaced.

Hill filed his complaint on March 30, 1987. He alleged that agents and employees of PP & L supervised and directed his work to such an extent that PP & L was liable to him for negligence associated with the loose handrail. After discovery, PP & L filed a motion for summary judgment with supporting affidavits and argument. The motion asserted that no genuine issue of material fact existed showing that PP & L maintained control over construction or safety of the scaffolding Hill fell from. PP & L pointed to Hill's own deposition testimony that, to his knowledge, only NESCO employees would have moved the scaffolding. Terrence Becker, a PP & L employee, testified in his deposition that the scaffolding involved in Hill's fall was built and designed by NESCO, using materials provided by PP & L. Dan Magnuson, a NESCO employee, and Don Vincent, a PP & L employee, testified by affidavit that PP & L did not direct or instruct NESCO employees on how to perform the details of their work at the Plant.

Hill presented no evidence showing that anyone other than NESCO employees would have removed and replaced the loose handrail. He also admitted that he never personally received any work instructions from PP & L personnel. He did argue, however, that certain deposition testimony concerning the conduct of several PP & L supervisory personnel showed PP & L control over the work of NESCO employees, establishing a duty PP & L owed to Hill for the safety of the loose handrail. Specifically, Hill asserted that PP & L owned the Plant, inspected the work of NESCO employees, and supplied tools for that work from the PP & L tool room. He pointed to instructions his welder, Jimmy Nicodemus, received from PP & L employee Gene Woods. PP & L personnel were alleged to have supervised Hill's foreman and to have been engaged in the same kind of work as NESCO employees. Hill also claimed that PP & L fired a NESCO supervisor shortly after his accident. The district court reviewed both parties' submissions and granted summary judgment to PP & L on April 11, 1988.

This court's standard of review of an order granting summary judgment is set out in Johnston v. Conoco, Inc., 758 P.2d 566, 568 (Wyo.1988). That standard applies here.

Several times in recent years, this court has addressed the law concerning the duty an independent contractor's employer, who owns the workplace, might owe to the employees of the independent contractor who work there. In Jones v. Chevron U.S.A., Inc., 718 P.2d 890, 892 (Wyo.1986), Jones, the employee of Chevron's independent contractor, received electrical shock injuries while painting an H-frame...