King v. Shelby Rural Elec. Co-op. Corp.

• Decision Date: 09 November 1973
• Citation: 502 S.W.2d 659
• Parties: Glen KING, Appellant, v. SHELBY RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 659

502 S.W.2d 659

Glen KING, Appellant, v. SHELBY RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee.

Court of Appeals of Kentucky.

Nov. 9, 1973.

Rehearing Denied Jan. 18, 1974.

R. J. Turley, Turley, Tackett, Savage & Moore, Lexington, Wilhoit & Wilhoit, Grayson, for appellant.

Stoll, Keenon & Park, Lexington, Saunders, Mitchell & Mathis, Shelbyville, for appellee.

VANCE, Commissioner.

This is an appeal from a summary judgment dismissing appellant's claim. It involves the tort liability of Shelby Rural Electric Cooperative Corporation, hereinafter referred to as Shelby, to an employee of its independent contractor, Electricom, Inc.

Shelby owns and operates an electric transmission system. In the operation of its business it became necessary for it to convert a single-phase transmission line to a three-phase line. As this was a major undertaking, Shelby employed Electricom, an independent contractor, rather than use its own employees to do the work.

Electricom was an experienced contractor in the construction of electric and telephone utility lines and Shelby had previously utilized its services. No suggestion is made that Shelby was negligent by reason of its selection of Electricom as the independent contractor to do the work.

Appellant, an employee of Electricom, was severely burned while working on an energized line. ¹ He instituted this action seeking recovery against Shelby on three grounds:

1. Shelby was liable for the negligence of its independent contractor;

2. Shelby was liable because of its own negligence resulting in injury to appellant;

3. Shelby violated certain contractual duties owed to appellant.

Shelby admitted that Electricom was negligent because of its failure to observe certain safety precautions and because of its failure to furnish appellant adequate training and suitable safety equipment. Shelby contended the accident resulted from the sole negligence of Electricom or from the negligence of Electricom and the contributory negligence of the appellant.

There is no dispute as to the facts. The real question is whether Shelby is shielded from liability by reason of the employer-independent contractor relationship.

We can begin with the general rule that an employer is not liable for physical harm caused to another by the act or omission of an independent contractor. Simmons v. Clark Construction Company, Ky., 426 S.W.2d 930 (1968); Jennings v. Vincent's Adm'x, 284 Ky. 614, 145 S.W.2d 537 (1940); 57 C.J.S. Master and Servant § 584; Restatement, Torts 2d, Sec. 409.

As noted in the Restatement, the general rule has been a jumping-off place for a number of exceptions, some of which appellant contends are applicable to the facts of this case.

One of the recognized exceptions to the general rule arises from those situations involving work of an inherently dangerous nature. This exception appears to have as its basis the principle that an owner should not be permitted to shield himself from liability for injuries arising out of work that is inherently dangerous by the simple expedient of entrusting that work to an independent contractor. Kentucky Stone Company v. Gaddie, Ky., 396 S.W.2d 337 (1965).

Appellant contends that work upon high tension transmission lines is inherently dangerous and comes within the exception to the general rule.

The Restatement of the Law, Torts 2d, deals with the questions presented on this appeal in Sections 413, 414, 416, and 427. Those sections read as follows:

§ 413. Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor.

'One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer

(a) fails to provide in the contract that the contractor shall take such precautions, or

(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.'

§ 414. Negligent in Exercising Control Retained by Employer.

'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.'

§ 416. Work Dangerous in Absence of Special Precautions.

'One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.'

§ 427. Negligence as to Danger Inherent in the Work.

'One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger.'

Although the decisions of this court appear to have recognized the liability of the employer of an independent contractor to third persons injured by the negligence of the contractor in the performance of work of an inherently dangerous nature, it has never been determined whether the liability in such cases extends to the employees of the independent contractor. Jennings v. Vincent's Adm'x, supra, and Simmons v. Clark Construction Company, supra, involved claims by the employee of an independent contractor against the contractee. In both cases the language seemed to indicate that liability of the contractee extends to the employees of an independent contractor, but neither case actually so held because both cases were dismissed upon the basis that the work involved was not of an inherently dangerous nature.

The authorities in other jurisdictions have split upon the question. California, Michigan, and Tennessee have held that an employee of an independent contractor is within the class of persons protected. McDonald v. City of Oakland, 255 C.A.2d 816, 63 Cal.Rptr . 593 (1967); Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508 (1968); Vannoy v. City of Warren, 15 Mich.App. 158, 166 N.W.2d 486, and Pierce v. United States, 142 F.Supp. 721 (6 Cir. 1955).

Appellant cites Associated Engineers, Inc. v. Job, 370 F.2d 633 (8 Cir. 1966), as authority that South Dakota follows a similar view. In Job the employer admitted negligence and consequently the question of whether the employer's duty to third persons extended to the employees of an independent contractor was not litigated.

Arizona, Florida, New Mexico, Pennsylvania, Texas, Washington and Wisconsin have adopted the contrary view. Welker v. Kennecott Copper Company, Ariz., 403 P.2d 330 (1965); Florida Power and Light Co. v. Price, 170 So.2d 293 (Fla.1964); Parsons v. Amerada Hess Corporation, 422 F.2d 610 (10 Cir. 1970); Hader v. Coplay Cement Mfg . Co., 410 Pa. 139, 189 A.2d 271 (1963); Humble Oil & Refining Co. v . Bell, Tex.Civ.App., 180 S.W.2d 970; Hurst v. Gulf Oil Corporation, 251 F.2d 836 (5 Cir. 1958); Humphreys v. Texas Power and Light Company, Tex.Civ.App., 427 S.W.2d 324 (1968); Epperly v. City of Seattle, 65 Wash.2d 777, 399 P.2d 591 (1965); and Potter v. City of Kenosha, 268 Wis. 361, 68 N.W.2d 4 (1955).

Nothing in the discussions of Sections 413, 414, 416 and 427 of the Restatement, Torts 2d, indicates that an employee of an independent contractor is within the class of 'others' protected by those sections. All of the illustrations set out in the Restatement refer to liability of the employer of an independent contractor to third parties other than employees of the independent contractor.

Tentative Draft #7 of the Restatement, Torts 2d, contained a special note to Chapter 15 which dealt with liability of employers for the conduct of independent contractors which contained the following language:

'The other class of plaintiffs not included in this Chapter consists of the employees of the independent contractor. As the common law developed, the defendant who hired the contractor was under no obligation to the servants of the contractor, and it was the contractor who was responsible for their safety. The one exception which developed was that the servants of the contractor doing work upon the defendant's land were treated as invitees of the defendant, to whom he owed a duty of reasonable care to see that the premises were safe. This is still...