Makaneole v. Gampon, s. 12049

• Decision Date: 24 July 1989
• Docket Number: Nos. 12049,12218,s. 12049
• Citation: 70 Haw. 501,777 P.2d 1183
• Court: Hawaii Supreme Court
• Parties: George MAKANEOLE, Petitioner-Respondent, v. Drake GAMPON, Respondent-Appellee, and Kauai Development Corp. dba Ohbayashi-Gumi, Ltd., Petitioner-Respondent, and Norman's Construction, Inc.; N. Murakami, Inc.; Norbub, Inc.; Sheraton Corporation; and John Does 1-50, Defendants, and Dillingham Construction Corporation, dba Hawaiian Dredging & Construction Company, Ltd., Respondent-Intervenor-Appellant.

Page 1183

777 P.2d 1183

70 Haw. 501

George MAKANEOLE, Petitioner-Respondent, v. Drake GAMPON, Respondent-Appellee, and Kauai Development Corp. dba Ohbayashi-Gumi, Ltd.,

Petitioner-Respondent, and Norman's Construction,

Inc.; N. Murakami, Inc.; Norbub, Inc.;

Sheraton Corporation; and

John Does 1-50, Defendants,

and

Dillingham Construction Corporation, dba Hawaiian Dredging &

Construction Company, Ltd., Respondent-Intervenor-Appellant.

Nos. 12049, 12218.

Supreme Court of Hawai'i.

July 24, 1989.

Syllabus by the Court

An owner of premises, who employs an independent contractor to do work on the premises, which the owner should recognize as likely to create, during its progress, a peculiar risk of physical harm to others unless special precautions are taken, or work, on the premises, which the owner knows, or has reason to know, involves a special danger inherent in or normal to the work, is liable for the physical harm to others caused by the contractor's failure to take reasonable precautions against such risk or danger.

Herbert R. Takahashi, Stanford, H. Masui and Danny J. Vasconcellos, Honolulu, for George Makaneole, petitioner-respondent.

Kenneth S. Robbins, Philip S. Nerney and Wayne P. Doane, Honolulu, for Kauai Development Corp., petitioner-respondent.

Before LUM, C.J., and PADGETT, HAYASHI, WAKATSUKI, JJ., and WILFRED K. WATANABE, Circuit Judge, in place of NAKAMURA, J., Recused.

PADGETT, Justice.

The Circuit Court of the Fifth Circuit entered an order in these cases granting directed verdicts in favor of Kauai Development Corporation (KDC) and Drake Gampon (Gampon). The Intermediate Court of Appeals (ICA) reversed the directed verdicts. 776 P.2d 402 (Haw.App.1989). KDC and appellant George Makaneole (Makaneole) filed applications for writs of certiorari which we granted.

We now affirm the ICA's reversal of the directed verdicts but reverse the ICA's holding in section IIIC of its opinion.

The evidence, as stated by the ICA, was as follows:

On September 18, 1981, Makaneole was employed as a carpenter by Plaintiff-Intervenor-Appellant Dillingham Construction Corporation, dba Hawaiian Dredging & Construction Company, Ltd. (Dillingham). KDC was the owner of the Sheraton Kauai Hotel, and had hired Dillingham as the general contractor for the hotel's expansion. Makaneole was injured on the above date while he was working on the roof of the lobby/dining area of the hotel.

The roof was constructed by nailing 4' X 8' X 1 1/2"' plywood sheets adjacent to each other on top of the roof frame to form a base upon which roofing tiles were to be set. A crane was used to raise the plywood sheets, weighing about 200 pounds each, to the roof. The terminal rigging of the crane consisted of a heavy metal "c-clamp" attached to the end of the crane's cable by a loop of rope. When the carpenters were ready for a plywood sheet, a worker on the ground placed a single sheet in the jaws of the c-clamp and tightened the clamp onto the sheet. The plywood sheet was then raised by the crane to a height sufficient to clear the roof, and the boom was swung over to the area on the roof where the workmen were working. The plywood sheet was then lowered and set in place by the workmen. The plywood sheet was then removed from the c-clamp, the c-clamp bolt was tightened all the way down, and the boom was raised and swung back to the area of the plywood supply on the ground.

Both Westford Asao (Asao), Dillingham's acting job superintendent on September 18, 1981, and Frank Merritt (Merritt), Makaneole's expert, testified at trial that the unusually steep pitch of the roof made its construction process dangerous. Asao testified that in erecting a normal roof the plywood sheets could be delivered in bundles to the top of the frame, and stored there while individual sheets were being removed and placed. In this case, however, the pitch of the roof would not allow that procedure and the sheets had to be hoisted individually. The evidence also showed that because of the roof's pitch the workmen were required to nail lengths of wood horizontally onto the plywood sheets after they were placed on the frame in order to provide themselves a foothold, and that sawdust and chemicals within the plywood made the workmen's footing very precarious.

On the day of Makaneole's injury, the crane was operated by Gampon under the supervision of Glen Tanaka (Tanaka), a Dillingham employee. [Norman's Construction, Inc. (Norman's) ] was hired by Dillingham originally as a subcontractor to undertake the crane work for the project. However, when Dillingham later discovered that Norman's was not a licensed contractor, Norman's status was changed, although it is not clear from the record exactly what the new status was. Asao testified that Norman's employees were put on Dillingham's payroll and Norman's was hired as a consultant for "his expertise in the framing" work for the roof. According to Asao, Norman Murakami or [Norbub, Inc. (Norbub) ] had a contract to rent the crane to Dillingham and was paid a consultant fee at the end of the project. Gampon testified, on the other hand, that he was paid throughout the job by Norman's. The parties agree, however, that Gampon was Norman's employee.

Just prior to Makaneole's injury, Gampon had raised a sheet of plywood to a group of carpenters working on a part of the roof near where Makaneole was working. Because the crane was not located on the same side of the building where the carpenters and Makaneole were working, Gampon could not see them. He manuevered the plywood sheet into position by responding to signals from one of the carpenters on the peak of the roof. After the sheet of plywood had been removed from the c-clamp by the carpenters, Gampon raised the c-clamp and began to swing the boom towards the area where Makaneole was working, not in the direction of the plywood supply, apparently on Tanaka's orders. Shortly after Gampon began to move the boom, something struck Makaneole's head and he was injured. Although no one saw what hit him, it appears that Makaneole was struck by the c-clamp, since it was found on the ground after the accident. Also, it was not determined whether the c-clamp became detached from the cable, striking Makaneole as it fell, or whether it struck Makaneole while it was still attached and then fell to the ground. Merritt's opinion was that it was still attached, but KDC and Gampon argue that it probably came loose from the loop of rope, because the jaws had not been bolted closed by the carpenters.

Section 416 of 2 RESTATEMENT (SECOND) OF TORTS (1965) at page 395, reads as follows:

§ 416. Work Dangerous in Absence of Special Precautions

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

Section 427 of the same work, provides:

§ 427. Negligence as to Danger Inherent in the Work One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger.

Id. at page 415.

The ICA, quoting from Jones v. Chevron USA, Inc., 718 P.2d 890 (Wyo.1986), declined to apply the principles stated in the two sections just quoted. The ICA, in this connection, quoted from Jones as follows:

"The employee * * * is covered by worker's compensation even if the contractor is insolvent. The owner should not have to pay for injuries caused by the contractor when the worker's compensation system already covers those injuries. Sloan v. Atlantic Richfield Company, Alaska, 552 P.2d 157, 160-161 (1976). The owner 'has in a sense already assumed financial responsibility for the injuries' because the independent contractor passes along his worker's compensation costs to the owner. Tauscher v. Puget Sound Power & Light Company, supra, [96 Wash.2d 274, 635 P.2d 426] at 430; Eutsler v. United States, 376 F.2d 634, 636 (10th Cir.1967).

Second, under worker's compensation, an employer is released from tort liability for his employee's job-related injuries. If we held an owner vicariously liable for injuries to the contractor's employees, then...