Livingston v. Citizen's Utility, Inc.
| Decision Date | 11 September 1970 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 13 Ariz.App. 94,474 P.2d 453 |
| Parties | Mary S. LIVINGSTON, as surviving spouse of Leroy H. Livingston, deceased, Appellant, v. CITIZEN'S UTILITY, INC., a corporation, Appellee. 729. |
| Court | Arizona Court of Appeals |
Rees, Estes & Browning by Paul G. Rees, Jr., Tucson, for appellant.
Gaynor K. Stover, Tucson, for appellee.
Plaintiff, Mary Livingston, sued defendant, Citizen's Utility, for the wrongful death of her husband. The trial court granted summary judgment for defendant on unspecific grounds and plaintiff appeals.
Construing the facts in a light most favorable to the party opposing the motion, plaintiff herein, they are as follow. Defendant is a public utility. In August, 1965, a violent storm downed a section of defendant's transmission lines near Nogales. The utility company orally contracted with Dykes Electric to do the line repair work. Plaintiff's deceased husband was one of Dykes' four-man crew sent with gear to repair the damage. It was while on this job that the deceased contacted a hot wire and died. Mrs. Livingston applied for and was granted workmen's compensation for the death of her husband by virtue of his being an employee of Dykes. She then sued Citizen's Utility for its negligence in failing to exercise proper care and supervision over the entire job.
At the hearing on the motion for summary judgment, plaintiff and defendant both stipulated to the following facts:
(1) That the deceased was a member of the Dykes' crew.
(2) That deceased was paid by Dykes.
(3) That Dykes had complied with the Workmen's Compensation Act.
(4) That Citizen's had complied with the Workmen's Compensation Act.
(5) That the repair work was part of Citizen's trade.
(6) That Dykes furnished equipment and crew to Citizen's for the job in question.
(7) That a storm downed the power lines.
(8) That Citizen's equipment and crew were also on the job.
On appeal, plaintiff raises the following questions for review:
'1. Was the deceased, Mr. Livingston, a 'statutory employee' within the terms of section 23--902B, A.R.S., under the facts presented to the lower court on motion for summary judgment; and if so, is this a valid legal defense to an action by an employee of a contractor against the owner of the facilities where said employee is fatally injured?
2. If the deceased, or his heirs, cannot bring a common law negligence action against appellee because of section 23--902B, A.R.S., is the application of said section to this action a violation of the Arizona Constitution, Article 2, section 31, and the contract clauses of the Arizona and United States Constitutions?
3. Does appellant have a claim against the appellee under the sections of the Restatement of Torts pertaining to a landowners' or contractors' liability, contrary to the opinion in Welker v. Kennecott Copper Co., 1 Ariz.App. 395, 403 P.2d 330?
4. Did the trial court err in granting summary judgment in favor of appellee and against appellant for the reasons set forth in the various questions outlined above?'
We believe issues one and three are dispositive of this appeal.
The Arizona statutes outline when an employee can receive Workmen's Compensation. A.R.S. § 23--1021 provides that employees injured or killed by accidents arising out of and in the course of their employment shall be entitled to compensation. A.R.S. § 23--902 subsec. A defines an employer generally as one who employs three or more persons in the same business. Subsection C also defines an independent contractor as an employer. Subsection B defines an employee as one over whom an employer has retained supervision and control. And A.R.S. § 23--906 subsec. A provides that employers who comply with the statutory provisions are not liable in tort, unless the employee rejects the Act. Consequently, A.R.S. § 23--1024, as amended, provides that when an employee elects to sue or to take compensation, he waives the opposite choice. This is also true if the alleged negligent party is a third party not in the same employ. If the employee takes compensation the Commission succeeds to his right to sue. A.R.S. § 23--1023.
In the instant case, defendant is the employer of the independent contractor and plaintiff's decedent the independent contractor's employee. Plaintiff has received Workmen's Compensation by virtue of decedent's employment with the independent contractor. Plaintiff now seeks to sue defendant on the grounds as generally found in the Restatement (Second) of Torts §§ 414 and 344.
Consequently, the first question reduces down to the following: Is an 'employee' of an independent contractor, within the Act's definition, who receives compensation by virtue of his employment with an 'employer' within the terms of the Act, foreclosed from suing in tort a different 'employer' under the Act, his independent contractor's employer?
In the case at bar, defendant, as well as Dykes Electric, fits the statutory definition of an 'employer'. Both parties likewise concede that defendant has contributed to the fund and fully complied with its provisions. However, we believe that A.R.S. § 23--902 subsec. B makes it essential that an employer share an employer-employee relationship in order for him to either be immune from suit or the one through whom an employee seeks compensation. This relationship exists only if supervision or control is retained and the work is a part of the trade of the employer. And we believe that A.R.S. § 23--902 subsec. C provides that when an employee works for one who is defined as an independent contractor, that independent contractor is his employer as to the job. In the instant case, plaintiff concedes that Dykes was an independent contractor and that Citizen's retained no control over Livingston on the job. Therefore, although it is theoretically possible for Livingston to have had two employers who retained controls, plaintiff does not so argue.
On the other hand, defendant does argue that plaintiff was sufficiently controlled by Citizen's as to be immune from suit. We believe the record, however, as it was before the trial court, supports plaintiff here. We do not believe Citizen's retained sufficient control over Livingston as to be his statutory employer, 1 thus immune from suit. 2 We therefore proceed to plaintiff's second contention.
The second issue is whether plaintiff has a cause of action in tort against defendant. The Arizona courts have inquired into this area generally and have concluded that an injured employee of an independent contractor can sue the general employer only under the provisions of the Restatement (Second) of Torts §§ 414 or 344 and its commonlaw terms. Section 414 creates a duty of care for the general contractor when he retains control over the work. Welker v. Kennecott Copper Co., 1 Ariz.App. 395, 403 P.2d 330 (1965). Section 344 covers a landowner's liability to invitees for hidden defects. Jones, infra.
The decision to limit liability to these two areas was determined after presentation of more numerous theories. Welker, supra. That the potential scope of liability is broad was recently reaffirmed in German v. Mountain States Telephone and Telegraph Co., 11 Ariz.App. 91, 462 P.2d 108 (1969), wherein the court pointed out that numerically, those duties imposed by the Restatement are large, deriving primarily from the contractor's various statuses. He can be sued because he controls some detail of the job; he can be sued because he is a principal or...
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Livingston v. Citizen's Utility, Inc.
...Appeals, Division Two, which affirmed a summary judgment granted by the Superior Court of Santa Cruz County. Livingston v. Citizen's Utility, Inc., 13 Ariz.App. 94, 474 P.2d 453 (filed September 11, 1970). The judgment of the trial court is reversed and the opinion of the Court of Appeals i......