Lewis v. N.J. Riebe Enterprises, Inc.

• Decision Date: 18 December 1990
• Docket Number: CA-CV,No. 1,1
• Citation: 823 P.2d 74,170 Ariz. 207
• Parties: Anthony E. LEWIS, Plaintiff-Appellee, v. N.J. RIEBE ENTERPRISES, INC., a corporation, Defendant-Appellant. 88-364.
• Court: Arizona Court of Appeals

Page 74

823 P.2d 74

170 Ariz. 207

Anthony E. LEWIS, Plaintiff-Appellee, v. N.J. RIEBE ENTERPRISES, INC., a corporation, Defendant-Appellant.

No. 1 CA-CV 88-364.

Court of Appeals of Arizona Division 1, Department B.

Dec. 18, 1990.

Review Granted June 11, 1991.

[170 Ariz. 209] Michael C. Anderson, Bullhead City, for plaintiff-appellee.

Rake, Copple, Downey & Black, P.C. by Thomas J. Chamberlin, Phoenix, for defendant-appellant.

OPINION

JACOBSON, Judge.

The primary issue in this appeal is whether a standard provision in an AIA construction contract making the general contractor responsible for safety on the construction project subjects the contractor to liability for injuries incurred by an independent subcontractor's employee.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant-appellant N.J. Riebe Enterprises, Inc. (Riebe) was the general contractor on the construction of an addition to the Mohave High School in Bullhead City. Plaintiff-appellee Anthony E. Lewis was employed by an independent carpentry subcontractor on the project, Mel Garges Carpentry. Lewis fell through a roof which was slightly pitched, with beams at four-foot intervals and 4' X 8' X 3/4"' plywood sheets nailed to the beams. The day before the accident, Michael Smith, Riebe's superintendent, advised Merrill Garges that the roof was improperly installed and would have to be redone because H-clips had not been utilized as required by the specifications. Garges met with three of his carpenters, including Lewis, to decide how best to remove the plywood sheets and replace them after installation of the H-clips. Lewis and another carpenter, Gary Clinton, began to redo the roof by pulling out the nails from each row of plywood sheets, installing the H-clips, and renailing that row of plywood.

Apparently, neither Merrill Garges nor any other Garges supervisor was present at the job site on the day of the accident. ¹ Early that day, Lewis overheard a conversation between Smith and two of Garges' carpenters regarding the dislodging of the plywood sheets by banging them from below with 2 X 4"'s. Following this conversation, other Garges employees began dislodging the plywood sheets from below while Lewis and Clinton remained on the roof. When the first few rows of plywood sheets had been dislodged, Lewis and Clinton began installing the H-clips and renailing the plywood back to the beams.

After working for a few hours, Lewis and Clinton walked across the dislodged plywood to a water jug on the roof. On the way back, Lewis stepped on a sheet of plywood that was not solidly placed on a beam; the sheet flipped up, and Lewis fell through the roof onto the concrete below, fracturing his wrist.

Before trial, Riebe moved for summary judgment, arguing that it owed no duty of care to Lewis, the employee of an independent subcontractor. The trial court denied this motion, as well as two motions for directed verdict made by Riebe on this basis. The jury determined Lewis to be 35% negligent and found he had sustained damages in the sum of $225,000. After the trial court denied Riebe's motions for judgment notwithstanding the verdict and for new trial, again made on the issue of lack of duty, Riebe appealed.

DISCUSSION

In order for Lewis to recover from Riebe, Lewis first must prove that Riebe owed a duty to him. Citizen's Utility, Inc. v. Livingston, 21 Ariz.App. 48, 51, 515 P.2d 345, 348 (1973). Whether Riebe owed a duty to Lewis is a question of law for the court. See generally Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 706 P.2d 364 (1985). See also Reber v. Chandler High School Dist. # 202, 13 Ariz.App. 133, 135, 474 P.2d 852, 854 (1970) (liability for negligent exercise of retained supervisory powers attaches only when a duty has been created by the reservation of control over manner in which the details of the work are performed); Wilson v. Portland General Electric Co., 252 Or. 385, 448 P.2d 562, 567 (1968) (question whether owner retained sufficient control under provisions of contract one of law for the court).

An analysis of duty in the construction field begins with the well-recognized rule that, ordinarily, a general contractor is not liable for injuries sustained by an employee of an independent subcontractor. Pruett v. Precision Plumbing, Inc., 27 Ariz.App. 288, 291, 554 P.2d 655, 658 (1976); Restatement (Second) of Torts § 409 (1965). However, a general contractor may be subject to liability for such injuries if it retains control over the subcontractor's work. Chesin Constr. Co. v. Epstein, 8 Ariz.App. 312, 314, 446 P.2d 11, 13 (1968). This "retained control" exception is set forth in § 414 of the Restatement (§ 414), which provides:

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.

The retained control exception contemplated by § 414 is not triggered by a contractor's retention of control over the premises, but rather by retention of control over the manner in which the work is done--that is, control over the method of doing the details of the work. Cordova v. Parrett, 146 Ariz. 79, 82, 703 P.2d 1228, 1231 (App.1985); Mason v. Arizona Public Serv. Co., 127 Ariz. 546, 550, 622 P.2d 493, 497 (App.1980). Such retention of control over the method and manner of the work must relate to the details of the work rather than merely the supervisory and inspection rights generally reserved by a general contractor to ensure that the results obtained conform to the specifications and requirements of the construction contract. Reber, 13 Ariz.App. at 135, 474 P.2d at 854. The right to program or direct the sequence of the work and reservation of the right to prescribe changes or alterations are not indicative of the right to control the details of the method or manner of doing the work. German v. Mountain States Tel. & Tel. Co., 11 Ariz.App. 91, 95, 462 P.2d 108, 112 (1969); Koepke v. Carter Hawley Hale Stores, Inc., 140 Ariz. 420, 425, 682 P.2d 425, 430 (App.1984). As generally explained in comment (c) to § 414:

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.

Riebe argues that it did not retain sufficient control over the roof construction to subject it to liability to Lewis under § 414. Lewis argues that there was sufficient evidence to support the jury's verdict based either on (1) Riebe's actual control of the roof construction on the day of the accident, or (2) Riebe's retained control of safety precautions on the project. We address each theory in turn.

Actual Control

Lewis first argues that, because no Garges supervisor was present at the job site on the day of the accident, Riebe, a fortiori, controlled the Garges employees in the method and manner of their performance of the details of the work. The only evidence cited to support this assumption is the following testimony from Clinton:

Q. Who was directing your activities on the day of the accident?

A. I couldn't say positively, but I would say that it would have to have been the superintendent from Riebe because the Garges foreman wasn't there, he was the general contractor on it for us, somebody would have to instruct us.

(Emphasis added.) This is insufficient evidence that Riebe actually controlled the work on the day of Lewis' accident. While Clinton testified that Smith directed his activities that day, ² he did not specify any of Smith's directions, merely opining that "somebody would have to [have] instruct[ed] us."

Lewis next argues that Riebe had actual control of the roof construction that day based on the conversation between Smith and the Garges carpenters regarding the banging of the plywood sheets from below with 2 X 4"'s. This argument is fatally flawed, however, because the record is simply devoid of evidence that Smith directed the Garges employees to use the 2 X 4"' method. Lewis testified:

Q. So, all you heard Mike Smith in conversation was a conversation concerning removing of the plywood, correct?

A. And the two-by-four method.

Q. He wasn't the one who instructed anyone to remove it by two-by-fours, though, was he?

A. Not that I recall.

Q. All you understand from your overhearing the conversation is that the method of doing it was possibly being discussed?

A. Yes.

Q. By someone from Mel Garges with Mike Smith?

A. Yes.

At most, this evidence established that Smith was aware that the 2 X 4"' method was being used. This is insufficient to establish Riebe's actual control over the work under § 414 so as to subject it to liability for Lewis' injuries. See German, 11 Ariz.App. at 96, 462 P.2d at 113 (general contractor is not subject to liability for harm caused by improper method which subcontractor, without any direction by general contractor, adopts in doing the work); Morris v. City of Soldotna, 553 P.2d 474, 479 (Alaska 1976) (evidence that general contractor's superintendent questioned subcontractor's employee about painting procedure, but did not instruct employee that a particular method be used, was insufficient to show that general contractor actually controlled subcontractor's work).

We thus find that there was insufficient evidence of...