Jackson v. Petit Jean Elec. Co-op.

• Decision Date: 29 September 1980
• Docket Number: CO-OP,No. 80-112,80-112
• Citation: 270 Ark. 506,606 S.W.2d 66
• Parties: Clay JACKSON et al., Petitioner, v. PETIT JEAN ELECTRIC, Respondent.
• Court: Arkansas Supreme Court

Page 66

606 S.W.2d 66

270 Ark. 506

Clay JACKSON et al., Petitioner, v. PETIT JEAN ELECTRIC CO-OP., Respondent.

No. 80-112.

Supreme Court of Arkansas.

Sept. 29, 1980.

Rehearing Denied Nov. 3, 1980.

Brazil & Roberts, Conway, Chester C. Lowe, Jr., Little Rock, for petitioner.

Wright, Lindsey & Jennings, Little Rock, for respondent.

MAYS, Justice.

We granted certiorari to consider the question of tort liability of an employer to employees of an independent contractor.

Respondent, Petit Jean Electric Cooperative Corporation, entered into a construction contract in June, 1973 with Johnson Construction Company, an independent contractor, to rebuild new transmission and distribution lines of its electric transmission system. In January, 1979, Clay Jackson, an employee of Johnson Construction Company and a petitioner herein, was seriously injured when his body came into contact with a hot wire while working on respondent's energized lines. Jackson recovered under the worker's compensation act from Johnson Construction Company's worker's compensation insurance carrier, Seaboard Fire and Marine Insurance Company, also a petitioner herein, and sought to recover for the same injuries by filing a civil action against Petit Jean on the theory of negligence and strict liability.

Jackson alleged that Petit Jean not only breached its common law duty of due care but breached the duty of care which it affirmatively assumed toward employees of Johnson Construction Company under the construction contract. Further, Jackson alleged in an amended complaint that even if Petit Jean were not negligent, Petit Jean should be liable for physical harm caused by the negligence of Johnson Construction Company, since the work it entrusted to Johnson Construction Company was inherently dangerous. In response to Petit Jean's motion for summary judgment, after Seaboard Fire and Marine Insurance Company intervened, the trial judge dismissed the action, finding no genuine issue of material fact regarding Petit Jean's liability. On review by the Court of Appeals, 599 S.W.2d 402, the judgment was affirmed.

It is generally recognized that an employer of an independent contractor owes a common law duty to the contractor's employees to exercise ordinary care for their safety and to warn against any hidden dangers or unusually hazardous conditions. See Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969). Relying upon this general principle, Jackson alleges that Petit Jean breached its duty by failing to insulate or isolate its hot wires and failing to de-energize its lines during the work hours of the independent contractor. Under the facts that are entirely without dispute, and giving Jackson the benefit of every contested fact and all favorable inferences, we find no basis in the record for imposing any duty upon Petit Jean to isolate or de-energize its lines or to warn employees of an electrical contractor that the work as contracted for would be dangerous if not done properly. Certainly, it cannot be seriously contended that Petit Jean should isolate lines from the employees of an electrical contractor whose compensation and contractual obligations expressly contemplate working around energized lines. The duty of an employer of independent contractor to use ordinary care or to warn of latent dangers does not contemplate a duty to warn of obvious hazards which are an integral part of the work the contractor was hired to perform.

Petitioners also allege that Petit Jean had a duty to require Johnson Construction Company to provide sufficient safety devices and proper supervision for its employees. Petitioners predicate such a duty upon language in the construction contract which reserved for Petit Jean the right to alter the size of the work force and the quality and type of tools and equipment used on the job, as well as the right to inspect and approve the work. Such language does not impose any special duties upon Petit Jean for the safety and well being of Johnson Construction Company's employees. See, Akins v. Okl. Gas & Electric, 433 F.Supp. 1345 (W.D.Ark.1977). Petitioners concede that Johnson Construction Company was an independent contractor, as opposed to a servant of Petit Jean, and the record clearly establishes that Petit Jean did not exercise any supervision or control over the manner and actual details of the work. Since Petit Jean neither promised nor undertook to supervise Johnson Construction Company's performance, Petit Jean owed no contractual duties to Johnson Construction Company's employees.

It is also argued that Petit Jean should be liable to Jackson because it negligently selected an incompetent contractor to perform inherently dangerous work. Assuming, without deciding, that Petit Jean owed a duty to Jackson to select a competent contractor, we find inadequate facts in the record to raise a material issue of negligent selection. Although Johnson Construction Company had limited experience in high-voltage electrical work, its superintendent, with whom Petit...