Lunde v. Winnebago Industries, Inc.

• Decision Date: 17 December 1980
• Docket Number: No. 64130,64130
• Citation: 299 N.W.2d 473
• Parties: Marc LUNDE, Appellant, v. WINNEBAGO INDUSTRIES, INC., Appellee. WINNEBAGO INDUSTRIES, INC., Cross-Petitioner, v. HENNINGSEN STEEL PRODUCTS CO., INC., Defendant to Cross-Petition.
• Court: Iowa Supreme Court

Page 473

299 N.W.2d 473

Marc LUNDE, Appellant, v. WINNEBAGO INDUSTRIES, INC., Appellee.

WINNEBAGO INDUSTRIES, INC., Cross-Petitioner, v. HENNINGSEN STEEL PRODUCTS CO., INC., Defendant to Cross-Petition.

No. 64130.

Supreme Court of Iowa.

Dec. 17, 1980.

Rehearing Denied Jan. 9, 1981.

James C. Ellefson of Lundy, Butler & Lundy, Eldora, for appellant.

Larry Cohrt of Swisher & Cohrt, Waterloo, for appellee.

Considered en banc.

LARSON, Justice.

Marc Lunde was an employee of a contractor retained by the appellee Winnebago Industries, Inc. to construct a building on its premises. During the construction process Lunde was injured, and he brought an action against several parties, including Winnebago. ¹ A jury verdict in favor of Lunde was set aside by the trial court and a judgment notwithstanding the verdict was entered on behalf of Winnebago. Lunde's appeal and Winnebago's cross-appeal followed. We affirm the trial court on Lunde's appeal, thus rendering the cross-appeal moot.

Lunde's employer, Henningsen Steel Products Company, Inc., had contracted with Winnebago to construct a steel frame building known as the "plastics plant," on Winnebago's premises. Pursuant to the contract, Henningsen was required to initiate, maintain, and supervise all safety procedures in connection with the project, and to comply with all applicable safety laws, rules and regulations.

Other than its expanse, the plastics plant possessed no unusual features. The building roughly measured 180 feet by 360 feet. It was approximately twenty-eight feet high at the peak and twenty-one to twenty-four feet at the outer walls. An addition was erected and joined to the main building. The roof, having a pitch of one inch fall per twelve inches of horizontal run at the point of Lunde's fall, consisted of thin, corrugated sheet metal panels laid in a grid pattern, which were attached with metal screws to steel purlins. Prior to Lunde's accident, the roof panels had been laid so that there was an overhang or cantilever of the thin metal, extending over the outside wall of the building one to one-and-a-half feet. Lacking vertical support, this overhang could not support a man's weight.

On the day of his injury, Lunde was attaching the roof panels to the purlins, continuing up and down the slope of the roof, as part of a two-man operation. While another Henningsen employee drilled holes into the purlins, Lunde followed, screwing down the panels with an impact wrench. As the two workers approached the edge of the building in attaching the first line of roof panels, the other employee moved on to an adjacent purlin and began drilling. Lunde, apparently unaware of his location, continued further down the slope of the roof onto the unsupported portion of the last panel and fell approximately twenty-five feet to a blacktop surface.

Lunde's suit against Winnebago alleged negligence of Henningsen is failing to employ safety netting, lifelines, scaffolding, and other precautions. He contended that Winnebago, as owner of the building, was liable for his injuries, despite his status as an employee of an independent contractor based, in the alternative, upon (1) the fact he was engaged in work "likely to create ... a peculiar risk of physical harm," under Restatement (Second) of Torts § 416 (1965), or (2) his status as a business invitee, Greenwell v. Meredith Corp., 189 N.W.2d 901 (Iowa 1971).

I. Claim under Restatement theory. We must first consider whether Lunde's "peculiar risk" theory is an issue of fact or law. Lunde contends the trial court erred in granting the motion for judgment notwithstanding the verdict because liability of Winnebago was a matter for the jury and not the court. However, the question is whether, under these facts, a property owner owed a duty to an employee of an independent contractor. This is a legal question. See Porter v. Iowa Power & Light Co., 217 N.W.2d 221, at 232-33 (refusal to submit instructions under section 416 upheld); Snider v. Northern States Power Co., 81 Wis.2d 224, 231, 260 N.W.2d 260, 263 (1977).

The general rule is that an employer of an independent contractor is not vicariously liable for injuries arising out of the contractor's negligence. Although various reasons have been suggested as the basis for this rule, the commonly-accepted reasoning is the lack of control by the employer over the details of the contractor's work. W. Prosser, Handbook of the Law of Torts § 71, at 468 (4th ed. 1971). In the present case, however, Lunde claims that due to the dangerous nature of the work in which he was engaged his injury falls within an exception to the general rule, set forth in the Restatement of Torts:

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress the 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.

Restatement (Second) of Torts § 416, at 395 (1965). We adopted section 416 in Giarratano v. Weitz Co., Inc., 259 Iowa 1292, 147 N.W.2d 824 (1967). Liability under section 416 does not turn upon the employer's negligence, but upon vicarious liability; the negligence of the independent contractor is imputed to the owner in the same manner as if the contractor were its employee. Restatement (Second), supra § 416, Introductory Note, at 394. ²

The obvious problem in applying section 416 is in deciding what constitutes a "peculiar risk of physical harm to others unless special precautions are taken." Lunde contends that working at a height of approximately twenty-five feet on a building was a peculiar risk unless the "special precautions" of scaffolding, nets, or "lifelines" were provided by Henningsen. Winnebago, however, contends that the risk of a fall in this case was not the "peculiar risk of physical harm" envisioned in the exception.

The Restatement sheds some light on the meaning of these simply phrased, yet troublesome, criteria of section 416:

(The "peculiar risk" exception) has no reference to such a general anticipation of the possibility that the contractor may in some way be negligent. It is not concerned with the taking of routine precautions other than the kind which any careful contractor could reasonably be expected to take, against all the ordinary and customary dangers which may arise in the course of the contemplated work. Such precautions are the responsibility of the contractor ....

Restatement (Second), supra, § 413, Comment b at 385 (emphasis added). ³ A discussion of the application of section 416 in building and demolition cases is also provided:

An independent contractor is often employed to do a piece of work which, as it progresses, is likely to involve the creation of a dangerous condition unless special precautions are taken to prevent the dangerous condition from existing, or to make it harmless after it is created.

Id., Comment c, at 386 (emphasis added). Demolition of a building without taking precautions to prevent the fall of a free-standing wall, excavations immediately adjoining a public highway without protective fencing, and digging a ditch in a public place without warning lights are cited as examples of projects which might result in liability of the employer of an independent contractor under section 416 because of the likelihood of injury. Id., § 416 Comment c, Illustrations 1, 2, at 396.

Comment d to section 416 states "it is not essential that the work which the contractor is employed to do be in itself an extra-hazardous or abnormally dangerous activity, or that it involve a very high degree of risk in the vicinity." Id. at 397. What is required is that the work be "likely to involve a peculiar risk of physical harm unless special precautions are taken," id. (emphasis added), and that it be "a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of doing the work, or the particular method which the employer knows that the contractor will adopt," id., Comment e, at 397 (emphasis added).

The requirement that such a risk will likely attend the performance of the work seems to insert the element of foreseeability. In fact, one writer has proposed analysis of foreseeability as a basis for resolving issues of employer liability:

Should there be lacking ... in the entire operation itself or any portion thereof out of which the injury accrued the element of foreseeable harm to others in the normal conduct of the operation the employer should not be called upon to respond the negligence (of the independent contractor).... If no unusual peril from the performance of the operation in the usual and practical manner is found to exist, no further question will arise. We may be certain in such cases that the act will be denominated a mere collateral act of negligence, even though it may have arisen from an act expressly ordered.

Smith, Collateral Negligence, 25 Minn.L.Rev. 399, 428 (1941) (footnotes omitted). Thus, if performance of work "in its normal manner" exposes others to undue risk of harm, an employer may be held liable for the acts of the independent contractor; the nature of the work itself suggests danger. On the other hand, if the nature of the work is such that performance of it in its usual manner would not expose others to unreasonable peril, the employer is not liable, even though acts of negligence are actually committed in the course of the job. Such torts are deemed to be "collateral" to the risk created by the nature of the work itself. Id. at 430; accord, Carson v. Blodgett Construction Co., 189 Mo.App. 120, 126-27, 174 S.W. 447, 448 (1915). The Carson court explained the distinction in this way:

In the one case the doing of the work creates danger and...