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

• Decision Date: 13 February 1992
• Docket Number: No. CV-91-0076-PR,CV-91-0076-PR
• Parties: Anthony E. LEWIS, Plaintiff-Appellee, v. N.J. RIEBE ENTERPRISES, INC., a corporation, Defendant-Appellant.
• Court: Arizona Supreme Court

Page 5

825 P.2d 5

170 Ariz. 384

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

No. CV-91-0076-PR.

Supreme Court of Arizona, In Banc.

Feb. 13, 1992.

[170 Ariz. 386] Anderson Law Offices by Michael C. Anderson, Bullhead City, and The Langerman Law Offices by Richard W. Langerman, and Amy G. Langerman, Phoenix, for plaintiff-appellee.

Copple, Chamberlin & Boehm, P.C. by Thomas J. Chamberlin, and Scott E. Boehm, Phoenix, for defendant-appellant.

OPINION

CORCORAN, Justice.

Plaintiff, Anthony E. Lewis (Lewis), sued to recover damages for injuries he sustained during the construction of an addition to Mohave High School in Bullhead City, Arizona. Lewis claimed that his injuries were caused by the negligence of N.J. Riebe Enterprises, Inc. (Riebe), the general contractor for the project. Following trial, the jury returned a verdict in favor of Lewis. On appeal, the court of appeals reversed, holding that, as a matter of law, Riebe owed no duty of care to Lewis. We granted review to examine numerous negligence principles as they relate to a general contractor's duty to subcontractors' employees. Rule 23, Arizona Rules of Civil Appellate Procedure. We have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3) and A.R.S. § 12-120.24. For the reasons stated below, the opinion of the court of appeals is vacated, 170 Ariz. 207, 823 P.2d 74, and the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

In May 1983, Riebe entered into a construction contract with the high school district to remodel and add on to Mohave High School. Riebe employed various subcontractors for the project, including Mel Garges Carpentry (Garges). Garges employed Lewis.

One of Garges' carpentry projects at the school was to install a slightly-pitched roof constructed of beams placed at 4-foot intervals with 4' X 8' sheets of plywood nailed to the beams. After the plywood was in place, Riebe's superintendent, Michael Smith (Smith), advised Garges that the roof was improperly installed and that it had to be redone because Garges did not install the H-clips required by the project specifications. Garges' owner met with Lewis and two other Garges carpenters to decide how best to install the H-clips. After this meeting, Lewis and another carpenter, Gary Clinton (Clinton), began removing the nails from each row of plywood, installing the H-clips, and renailing the plywood.

On the second day of the H-clip installation project, Smith and two Garges carpenters discussed a quicker method of dislodging the plywood by banging the plywood from underneath with 2"' X 4"'s. Although no Garges supervisor was present at the job site to instruct them, ¹ Garges employees began dislodging the plywood using the 2 X 4 method while Lewis and Clinton remained on the roof. Smith observed this practice and instructed other subcontractors to leave the work space under the roof because he was concerned about their safety.

After a few rows of plywood had been dislodged, Lewis and Clinton installed H-clips and renailed the plywood to the beams. Because the plywood was dislodged faster than Lewis and Clinton could install the H-clips and renail the plywood, numerous sheets of dislodged plywood were left lying loose on top of the beams. Lewis stepped on a piece of this loose plywood and fell through the roof onto the concrete floor below. Lewis seriously fractured his wrist in the fall.

In its standard American Institute of Architects (AIA) contract with the school district, Riebe assumed sole responsibility for supervising and coordinating all aspects of the construction project. Riebe agreed to be responsible for "initiating, maintaining and supervising all safety precautions and programs in connection with the work," and to "take all reasonable precautions for the safety of, and [to] provide all reasonable protection to prevent damage, injury or loss to ... all employees on the work...." Riebe also agreed to appoint a safety director "whose duty shall be the prevention of accidents." Smith was Riebe's designated safety director.

Lewis sued Riebe for its negligent failure to provide a safe workplace. Riebe moved for summary judgment, twice moved for a directed verdict, and moved for a new trial, each time arguing that because Lewis was an employee of an independent contractor, Riebe owed him no duty of care. The trial court denied the motions. The jury returned a verdict for $225,000 in favor of Lewis and found that Lewis was 35% at fault. ² The court of appeals reversed, holding that as a matter of law Riebe owed Lewis no duty of care.

DISCUSSION

A. The Duty Issue

We granted review to determine (1) whether a general contractor owes a duty of care to employees of a subcontractor, and, if so, (2) the scope of that duty.

1. The Duty Owed by a General Contractor

Whether a general contractor owes a duty of care to the employees of a subcontractor is a question of law for the court. See Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985) (issue of duty one of law for the court). The court of appeals recognized this rule and held that Riebe owed no duty of care to Lewis as a matter of law. The court of appeals reached this conclusion by examining the details of Riebe's control over the work at the construction site and finding that Riebe did not retain sufficient control over Garges' work to subject Riebe to liability for Lewis' injuries under Restatement (Second) of Torts § 414 (1965). Lewis v. Riebe Enter., Inc., 170 Ariz. 207, 210, 823 P.2d 74, 78 (App.1990).

We believe the court of appeals' reliance on § 414 to determine whether Riebe owed Lewis a duty of care is misplaced. Section 414 provides:

Negligence in Exercising Control Retained by Employer.

[A general contractor] 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.

(Emphasis added.) Rather than addressing the threshold question of whether a duty exists, we believe § 414 addresses the scope of a general contractor's duty once that duty is found to exist. In fact, § 414, by its own language, subjects a general contractor to liability only if the general contractor "owes a duty [to the person injured] to exercise reasonable care." Thus, before considering § 414, we turn to well-established Arizona case law to determine whether Riebe owed Lewis any duty of care.

This court has previously held that a general contractor has a duty to provide a safe workplace for the employees of subcontractors.

The general rule which defines the common law obligation of the general contractor to the employee of the subcontractor imposes upon the former the obligation to exercise ordinary care to furnish the latter with a reasonably safe place in which to work or, if there is danger attendant upon his work which arises from conditions that are not obvious, to give the employee reasonable warning of such danger.

Manhattan-Dickman Constr. Co. v. Shawler, 113 Ariz. 549, 553, 558 P.2d 894, 898 (1976) (emphasis added), quoting Jean v. Collins Constr. Co., 215 Cal.App.2d 410, 416-17, 30 Cal.Rptr. 149, 153 (1963) (citations omitted); see also Durnin v. Karber Air Conditioning Co., 161 Ariz. 416, 417, 420, 778 P.2d 1312, 1313, 1316 (App.1989) (affirming jury instruction stating general contractor has duty to provide employees of subcontractors with reasonably safe work site); cf. 3 J.D. Lee & Barry A. Lindahl, Modern Tort Law § 43.54 (rev. ed. 1990) (general contractor who coordinates work of various subcontractors owes duty to workers to keep premises safe). We hold, therefore, that Riebe did owe a duty of care to Lewis--a duty to provide Lewis with a reasonably safe place to work.

2. The Scope of a General Contractor's Duty

As stated above, we believe that § 414 establishes the scope of a general contractor's duty of care. Although a general contractor has a general duty to provide a reasonably safe workplace for the employees of subcontractors, the scope of this duty extends only as far as the amount of control the general contractor retains over the work of the subcontractor. See Mason v. Arizona Public Serv. Co., 127 Ariz. 546, 551, 622 P.2d 493, 498 (App.1980) ("The duty to provide a safe place to work generally extends no further than the control retained by the [general contractor]."); Kelley v. Wright Constr. Co., 90 Wash.2d 323, 330, 582 P.2d 500, 505 (1978); Prosser and Keeton on Torts § 71, at 510 (5th ed. 1984) (so far as a general contractor retains control over any part of the work, he must exercise reasonable care). This is the rule set out in § 414.

This court previously adopted § 414 as the law of Arizona and held that its protection extends to the employees of subcontractors. See Matsumato v. Arizona Sand & Rock Co., 80 Ariz. 232, 236, 295 P.2d 850, 853 (1956) (applying § 414 to third persons); Manhattan-Dickman, 113 Ariz. at 553, 558 P.2d at 898 (applying § 414 to independent contractors); see also Welker v. Kennecott Copper Co., 1 Ariz.App. 395, 405, 403 P.2d 330, 340 (1965) (holding that protection provided by § 414 applies to employees of independent contractor). Under § 414, then, Riebe's duty of care extended as far as the scope of its retained control over the construction of the Mohave High School addition, and Riebe is liable for any injury caused by its negligent exercise of that retained control.

In a long line of cases, the court of appeals previously treated the § 414 retained control issue as a question of law for the court. See generally, e.g., Mason v. Arizona Public Serv. Co., 127 Ariz. 546, 622 P.2d 493 (App.1980); Sullins v. Third & Catalina Constr. Partnership, 124 Ariz. 114, 602 P.2d 495 (App.1979); Pruett v Precision Plumbing, Inc., 27...