Mason v. Arizona Public Service Co., 1

• Decision Date: 30 September 1980
• Docket Number: CA-CIV,No. 1,1
• Citation: 127 Ariz. 546,622 P.2d 493
• Parties: Bob R. MASON, Plaintiff-Appellee, v. ARIZONA PUBLIC SERVICE COMPANY, an Arizona Corporation; and Foxworth-Galbraith Lumber Company, a Delaware Corporation, Defendants-Appellants. 4338.
• Court: Arizona Court of Appeals

Page 493

622 P.2d 493

127 Ariz. 546

Bob R. MASON, Plaintiff-Appellee, v. ARIZONA PUBLIC SERVICE COMPANY, an Arizona Corporation; and Foxworth-Galbraith Lumber Company, a Delaware Corporation, Defendants-Appellants.

No. 1 CA-CIV 4338.

Court of Appeals of Arizona, Division 1, Department C.

Sept. 30, 1980.

Rehearing Denied Dec. 9, 1980.

Review Denied Jan. 13, 1981.

Langerman, Begam, Lewis, Leonard & Marks by Samuel Langerman and Noel A. Fidel, Phoenix, for plaintiff-appellee

Snell & Wilmer by Warren E. Platt, William H. Douglas, John J. Bouma, Phoenix, for defendant-appellant Arizona Public Service Co.

Mariscal, Weeks, McIntyre & Friedlander, P. A., by Gary Birnbaum, and Streich, Lang, Weeks & Cardon, A Professional Ass'n by William S. Hawgood, II, Phoenix, for appellant Foxworth-Galbraith Lumber Co.

OPINION

OGG, Chief Judge.

In this appeal we must consider what duty a landowner has to insure the safety of workers at a construction site. We also must consider what duty an electric power company has to take precautions to protect workers at a construction site when it can be reasonably anticipated that persons may be endangered by its power lines. The appellee, Bob R. Mason, brought an action against the appellants, Arizona Public Service Company (APS) and Foxworth-Galbraith Lumber Company, for damages he suffered while he was employed in the construction of a new building for Foxworth-Galbraith when a piece of metal flashing he was handling came into contact with an electricity distribution line owned and maintained by APS. Appellee recovered a jury verdict of $425,000 against both appellants. Both appellants have appealed, urging diverse contentions.

We must view the evidence and the inferences to be drawn therefrom in the light most favorable to sustaining the verdict and judgment of the trial court. Lane Title and Trust Co. v. Brannan, 103 Ariz. 272, 440 P.2d 105 (1968).

The facts considered in the light most favorable to upholding the jury verdict are as follows. For many years, Foxworth-Galbraith has operated a lumber business in the city of Eloy. In 1972, it decided to erect a second building on its property for the storage of lumber. Sometime prior to August 1972, it entered into a contract with Flynn Steel Building Company whereby Flynn was to supply materials and labor to construct the new building. The new building was to be a prefabricated metal structure.

Foxworth-Galbraith determined the site of the building and entered into a contract with Charles Jackson, an Eloy contractor, to install the foundation and footings for the new building. The new building was located adjacent to the existing Foxworth-Galbraith building in such a manner that the south walls of both of the buildings were to be in alignment. 5th Street, a public street of the city of Eloy, is adjacent to the south of the property owned by Foxworth-Galbraith. APS owns an easement on the north of 5th Street and immediately to the south of the Foxworth-Galbraith property. The electricity distribution line in question was located within this easement, over 23 feet above the ground. The line was uninsulated and carried 7200 volts of electricity. It ran, like the south wall of the existing building, the projected building and 5th Street, in an east-west direction.

The south wall of the building was 60 feet in width and 16 feet in height at its east and west ends. It rose to 181/2 feet in the middle, at the peak of the roof. The expert witness called by appellant testified that, measured from the south end of the peak of the roof, there was a "vertical clearance" of 4 feet 111/2 inches and a "horizontal clearance" of 2 feet 13/4 inches from the building to the APS electric line. Clearances prescribed by the National Electrical Safety Code with which APS is required to comply by regulation of the Corporation Commission are 8 feet vertically and 3 feet horizontally between electrical line and structure. In contrast to appellee's expert witness, an APS employee testified that its 5th Street line was in conformity with these prescribed clearances.

Appellee Mason was employed by Flynn Steel Building Company, which is not a party to this particular litigation. Flynn commenced working on the project on October 2, 1972 after Charles Jackson had completed the foundation and footings. Erection of the prefabricated building was swift, and the structure was in the final stages of completion on October 10 when the subject accident occurred. Appellee was near the south edge of the roof, to the west of the peak, engaged in the task of receiving strips of flashing from the ground and affixing them to the south wall and roof. Just before the accident, appellee was kneeling near the south edge of the roof, and the 10 foot strips of metal flashing were being passed up to him by a co-worker. After coming into possession of one of the strips, appellee swung it around in the air for proper placement, and in the course of this swinging the strip came into contact with the power line. The electricity was grounded through appellee's knees and he fell to the ground. This litigation followed.

Additional facts will be referred to in connection with the discussion of the differing contentions made by the parties on appeal.

THE APPEAL OF FOXWORTH-GALBRAITH

Appellee's theory of liability on the part of Foxworth-Galbraith is predicated upon evidence that it was customary in the construction industry for a general contractor, or the owner if there was no general contractor, to conduct an inspection of the property at the beginning of a construction project and to eliminate or minimize hazards such as that presented by the power transmission line in the present case. Appellee contends that the duty established by this custom applies to Foxworth-Galbraith because although Flynn Steel Building Company sometimes undertook to act as a general contractor for a fee in addition to the sum paid for furnishing labor and materials in the construction of the building, it was not so engaged by Foxworth-Galbraith. The only legal authority cited by appellee in connection with the liability of Foxworth-Galbraith is the Restatement (Second) of Torts, § 414 (1965), which states:

§ 414. Negligence in Exercising Control

Retained by Employer

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.

Retention of a measure of control over the manner in which the work is done is prerequisite to the rule of liability stated in § 414. Comment c to the section states:

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.... 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.

A retention of some measure of control over the premises is not a sufficient predicate for liability under the rule of liability stated in § 414. As Division Two stated in the case of Citizen's Utility, Inc. v. Livingston, 21 Ariz.App. 48, 52, 515 P.2d 345, 349 (1973):

§ 414 has nothing to do with control over the premises but applies only to control or supervision over the work being performed by the independent contractor. (Emphasis in original)

There is no evidence nor any contention in the present case that Foxworth-Galbraith retained any control over the manner in which Flynn Steel Building Company did its work. Accordingly, liability cannot be predicated upon § 414 of the Restatement (Second) of Torts.

In order for a custom to define the relevant duty, it must be shown that the defendant either knew of the custom, or that he should have known of it. Prosser states the principle as follows:

A custom, to be relevant, must be reasonably brought home to the actor's locality, and must be so general, or so well known, that the actor may be charged with knowledge of it or with negligent ignorance.

Prosser, Law of Torts, 168 (4th ed. 1971). Accord: American Smelting and Refining Company v. Wusich, 92 Ariz. 159, 375 P.2d 364 (1962).

The evidence presented by appellee as to custom generally referred to a custom or practice recognized within the construction industry. Appellee has not called our attention to any evidence indicating that Foxworth-Galbraith knew of the custom or practice, or that the custom or practice was so widely recognized that Foxworth-Galbraith should have known of it, nor have we found any such evidence. In the absence thereof, we do not need to determine whether an industry custom may form the basis of actionable negligence.

No contractual basis for liability is asserted. It is apparent from a review of the contract between Foxworth-Galbraith and Flynn Steel Building Company that Flynn had total control of the building project. By contrast, Foxworth-Galbraith was excluded from the premises during construction. The duty to provide a safe place to work generally extends no further than the control retained by the contractee. See Pruett v. Precision Plumbing, Inc., 27 Ariz.App. 288, 554 P.2d 655 (1976). Appellee stated at the trial that he considered there was nothing unsafe about his place of work on the day in question.

Generally, in the absence of retained control, the duties owed by a landowner to third persons are not owed to the employees of an independent contractor. See Parks v. Atkinson, 19 Ariz.App. 111, 505 P.2d 279 (1973), relying on Welker v. Kennecott Copper Company, 1 Ariz.App. 395, 403 P.2d 330 (1965), and Restatement (Second) of Torts, §§ 413, 416, 422 and 427. A possessor of land is not liable to invitees in respect to known or obvious dangers, or dangers that he may reasonably expect his invitee to realize and take precautions against. Restatemen...