Kragel v. Wal-Mart Stores, Inc.

Citation537 N.W.2d 699
Decision Date20 September 1995
Docket NumberWAL-MART,No. 94-705,94-705
PartiesBernadine KRAGEL and Paul Kragel, Jr., Appellants, v.STORES, INC., Appellee.STORES, INC., Third-Party Plaintiff/Cross Appellee, v. James LAUBSCHER d/b/a Laubscher Roofing Co., a/k/a Laubscher Roofing Service, Third-Party Defendant/Cross Appellant. James LAUBSCHER d/b/a Laubscher Roofing Co., a/k/a Laubscher Roofing Service, Fourth-Party Plaintiff/Cross Appellant, v. Dennis LOBAUGH d/b/a Loby's Auto & Sandblasting, Fourth-Party Defendant/Cross Appellant.
CourtUnited States State Supreme Court of Iowa

Reed H. Reitz of Reimer, Lohman & Reitz, Denison, for appellants.

John D. Ackerman and Marvin Heidman of Eidsmoe, Heidman, Redmond, Fredregill, Patterson & Schatz, Sioux City, for appellee/cross appellee Wal-Mart.

D.R. Franck and Michael R. Mundt of Franck, Mundt & Franck, Denison, for cross appellant Laubscher.

Warren L. Bush, Wall Lake, for cross appellant Lobaugh.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, SNELL, and TERNUS, JJ.

LAVORATO, Justice.

In this slip and fall case, the plaintiff sued only the owner of the premises where she fell. Her husband joined in the lawsuit for loss of consortium. The owner cross-petitioned for contribution against an independent contractor whom the owner had hired to clear the premises of snow. The independent contractor in turn cross-petitioned against a subcontractor whom he hired to do the actual plowing. The owner then cross-petitioned for contribution against the subcontractor.

The jury returned a verdict finding that the owner was not at fault. Because the court would not allow the jury to assign fault against the contractor and subcontractor in the plaintiffs' action, the jury also assigned no fault to them.

The plaintiffs appealed, raising issues as to their requested jury instructions which the district court refused to give. The independent contractor cross-appealed, claiming error in an instruction the court did give. The subcontractor also cross-appealed but he did nothing more than adopt the owner's brief.

We reverse and remand for a new trial as to the appeal. We affirm on the cross-appeal.

I. Background Facts.

In September 1991, Wal-Mart Stores, Inc. contracted with James Laubscher to remove snow accumulations from the parking lot of its new Denison store down "to the asphalt." Brad Schaffner, the store manager, negotiated the contract. Unknown to Wal-Mart, Laubscher had subcontracted with Dennis Lobaugh to do this work whenever Laubscher was out of town.

A snowstorm hit Denison on October 31. The Wal-Mart store opened for business November 2. Two days later Bernadine Kragel slipped and fell on an accumulation of packed snow and ice on the store's parking lot. She sustained a fractured hip, fractured left elbow, and other injuries because of her fall.

Laubscher was out of town between October 31 and the date Bernadine fell. Lobaugh attempted to clear the parking lot of snow on the evening of October 31. Lobaugh was unable to clear the parking lot of the snow because the snow was too slushy and he had mechanical difficulties with his pickup. During the night the temperature dropped, causing the remaining slush and snow to freeze. The next morning, Lobaugh returned to finish the job but was unable to remove this layer of ice and snow.

Schaffner was aware of Lobaugh's efforts the evening of October 31 but did not know Laubscher had subcontracted the plow work to Lobaugh. The next morning when Schaffner arrived at work, he noticed the job had not been completed. Schaffner tried to contact Laubscher but was not successful because Laubscher was still out of town.

Schaffner then hired another party who had an end-loader to complete the job. On the morning of November 2, this party--using the end-loader--was able to remove all but one to two inches of packed snow. Schaffner also enlisted the help of the city, whose snow removal crew spread sand containing a melting agent on the lot three times per day on November 2, 3, and 4.

After Bernadine fell, Laubscher revealed his arrangement with Lobaugh to Schaffner. Schaffner terminated Wal-Mart's contract with Laubscher.

II. Background Proceedings.

Bernadine filed a negligence action against Wal-Mart. Paul Jr., her husband, joined in her action with a loss of consortium claim.

Wal-Mart cross-petitioned against Laubscher, seeking contribution. Laubscher in turn cross-petitioned against Lobaugh, also seeking contribution. Wal-Mart then cross-claimed against Lobaugh for contribution and moved for summary judgment against the Kragels. The district court denied the motion and the case proceeded to a jury trial.

In answers to special interrogatories, the jury found that Wal-Mart was not at fault. The Kragels appealed. Laubscher and Lobaugh cross-appealed.

III. Scope of Review.

The issues in this appeal all relate to alleged district court error regarding jury instructions. Our review of jury instruction challenges is for legal error. Iowa R.App.P. 4; State v. Massick, 511 N.W.2d 384, 386 (Iowa 1994).

IV. Issues in the Appeal.

As to the jury instructions, the Kragels think the district court erred in two respects. First, the Kragels say the court should have instructed the jury that Wal-Mart had a nondelegable duty to maintain the parking lot in a reasonably safe condition. And, second, the Kragels say the court should have instructed the jury to consider the fault of Laubscher and Lobaugh in the Kragels' case.

A. District court's failure to instruct jury that Wal-Mart had a nondelegable duty to maintain the parking lot. The Kragels believe the district court erred when it refused to separately instruct the jury that Wal-Mart had a nondelegable duty to maintain the parking lot in a reasonably safe condition. To fully understand the Kragels' contention, we need to review the rules governing the liability of one who employs an independent contractor.

1. Applicable law. Generally, an employer of an independent contractor is not liable for the negligence of the contractor or the contractor's employees. Restatement (Second) of Torts § 409 (1965); Lunde v. Winnebago Indus., Inc., 299 N.W.2d 473, 475 (Iowa 1980). The rationale for the rule is that

since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it.

Restatement (Second) of Torts § 409 cmt. b (1965).

As one court noted, this general rule "is riddled with a number of common-law exceptions that have practically subsumed the rule." Rowley v. Mayor & City Council of Baltimore, 305 Md. 456, 462, 505 A.2d 494, 497 (Ct.App.1986). Comment b to section 409 of the Restatement (Second) of Torts points out that these exceptions fall into three broad categories:

1. Negligence of the employer in selecting, instructing, or supervising the contractor.

2. Nondelegable duties of the employer, arising out of some relation toward the public or the particular plaintiff.

3. Work that is specially, peculiarly, or "inherently" dangerous.

Restatement (Second) of Torts § 409 cmt. b (1965).

These exceptions are covered in sections 410 to 429 of the Restatement (Second) of Torts. Sections 410 to 415 deal with liability imposed because of the employer's actual fault. The Kragels do not suggest that Wal-Mart is liable upon any such theory. Rather, they rely upon a theory of vicarious liability based upon one or more of the principles in sections 416 to 429.

The introductory note to sections 416 to 429 pertinently says this:

The rules stated in [sections 416 to 429], unlike those stated in [sections 410 to 415], do not rest upon any personal negligence of the employer. They are rules of vicarious liability, making the employer liable for the negligence of the independent contractor, irrespective of whether the employer has himself been at fault. They arise in situations in which, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor. The liability imposed is closely analogous to that of a master for the negligence of his servant.

The statement commonly made in such cases is that the employer is under a duty which he is not free to delegate to the contractor. Such a "nondelegable duty" requires the person upon whom it is imposed to [insure] that care is exercised by anyone, even though he be an independent contractor, to whom the performance of the duty is entrusted. Such duties have been recognized in a series of exceptions to the "general rule" of nonliability stated in [section] 409, which are stated in [sections 416 to 429].

Restatement (Second) of Torts §§ 416-429 commentary at 394 (1965).

As one commentator points out, courts generally agree that the duty of a possessor of land to keep the possessor's premises in a reasonably safe condition for business invitees is a nondelegable duty. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, at 511-12 (5th ed. 1984). See also 41 Am.Jur.2d Independent Contractors § 46, at 815 (1968); Thomas E. Miller, Annotation, Storekeeper's Liability for Personal Injury to Customer Caused by Independent Contractor's Negligence in Performing Alterations or Repair Work, 96 A.L.R.3d 1213 (1979). As one court has noted, the term "nondelegable duty" in this context is somewhat of a misnomer because "the owner is free to delegate the duty of performance to another, but he cannot thereby avoid or delegate the risk of nonperformance of the duty." Rowley, 305 Md. at 466, 505 A.2d at 499.

This particular nondelegable duty is covered in two different sections of the Restatement (Second) of Torts: sections 422 and 425. In Lunde this court implicitly adopted section 422. Lunde, 299 N.W.2d at 479-80. Section 422 provides:

A possessor of land who...

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