McCormick v. Nikkel & Assocs., Inc.

• Decision Date: 25 May 2012
• Docket Number: No. 10–1889.,10–1889.
• Citation: 819 N.W.2d 368
• Court: Iowa Supreme Court
• Parties: Troy McCORMICK and Lynn McCormick, Appellants, v. NIKKEL & ASSOCIATES, INC. d/b/a NAI Electrical Contractors, a Corporation, Appellee.

819 N.W.2d 368

Troy McCORMICK and Lynn McCormick, Appellants,

v.NIKKEL & ASSOCIATES, INC. d/b/a NAI Electrical Contractors, a Corporation, Appellee.

No. 10–1889.

Supreme Court of Iowa.

May 25, 2012.

Steven D. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for appellants.

Ned A. Stockdale of Fitzgibbons Law Firm, L.L.C., Estherville, for appellee.

MANSFIELD, Justice.

This case presents the question whether a subcontractor that properly performs electrical work on a jobsite, then locks up the work and transfers control to the property owner, owes a duty of care to an employee of the owner electrocuted six days later when the owner fails to deenergize the work site in contravention of various warnings and regulations. We conclude that no such duty is owed under the circumstances. Accordingly, we affirm the summary judgment granted by the district court and vacate the decision of the court of appeals reversing that grant of summary judgment.

I. Facts and Procedural Background.

Little Sioux Corn Processors operates an ethanol plant located near Marcus, Iowa.¹ In 2006, Little Sioux was expanding the capacity of that plant. Part of that expansion involved electrical upgrades and changes. Little Sioux hired Fagen Engineering, Inc. to design the new electrical loop and to specify the electrical equipment to be included in the loop. Little Sioux purchased the electrical equipment needed for the electrical loop from Graybar Electric. Among the items purchased from Graybar were several switchgears. A switchgear is a large metal cabinet mounted on a pad that receives and transmits high-voltage electricity and, through mechanically operated switches, controls the overall flow of electricity within the distribution system.

Little Sioux hired a contractor, Schoon Construction Company, to work on the electrical loop by boring in and pulling the electrical cables that connected the components of the new electrical loop and placing and installing the switchgears on their mounting basements. Schoon in turn hired the defendant, Nikkel & Associates, Inc., to do “terminations,” which involved hooking up electrical cables to terminals in the switchgears. This work was performed by early October 2006, and the lines were energized through the switchgears.

Little Sioux also purchased fault indicators from Graybar. These optional devices were to be mounted inside the switchgear cabinet. A fault indicator signals when there is an interruption or fault in the electrical circuit.

The original plan was for Nikkel to install the fault indicators inside the cabinets.However, it turned out the holes on the mounting brackets were too small. On November 7, 2006, Ken (Buford) Peterson, of Nikkel, spoke with Russell Konwinski, Little Sioux's maintenance manager, and offered to drill out the holes in the brackets. To save money, Konwinski declined the offer and said he would have his personnel modify the mounting brackets and install them in the switchgear cabinets.

Peterson left the work site pending the completion of that task. When Peterson left, the switchgear cabinets were closed and secured with penta-head bolts that could only be removed through the use of a special penta-head socket wrench, which Little Sioux had ordered along with the electrical equipment. In addition, the switchgear cabinets bore signs warning of the hazard of high voltage.

Six days later, on November 13, 2006, Little Sioux's Konwinski asked fellow employee Mike Jacobson, an electrician, to remove, drill out, and install the fault indicator brackets. Jacobson said he needed help because of other things going on, so Konwinski assigned Jeff Sangwin and Troy McCormick, the plaintiff, to assist Jacobson. Konwinski believed the switchgears were not energized and so informed the group.

Little Sioux's general manager, Steve Roe, knew that Switchgear # 4, where the accident occurred, was energized on November 13. In fact, it had to be energized in order for the plant to be running because it was on the line between the main panel and the plant.

Peterson reenergized the electrical circuit from the main panel to Switchgear # 4 before he left the site on November 6. Peterson claims he energized the line in the presence of Konwinski and Jacobson. However, in an affidavit, Konwinski denied he was present. Konwinski also stated in his affidavit, “I had asked Buford Peterson to tell when the power would be turned on but I was not told by him before November 13, 2006, that it was on.”

It is undisputed that both Little Sioux's and OSHA's safety regulations required employees to deenergize and lock out or tag electrical equipment before beginning work. These rules required the employee to assume all electrical equipment was energized until proven otherwise. The lockout/tag procedures were not followed by the Little Sioux employees the day McCormick was injured.

After being assigned to remove, drill out, and install the brackets, Jacobson used the penta-head socket wrench to open two of the switchgear cabinets so the brackets could be removed and the holes redrilled. However, when Jacobson was called away to help with another project at the plant, he left McCormick and Sangwin to complete the work. Neither McCormick nor Sangwin had prior electrical training. McCormick used the wrench to open the cabinet door to Switchgear # 4. After removing the bracket and redrilling the holes, McCormick received a severe electrical shock when he tried to reinstall the bracket in the cabinet. He survived but sustained substantial injuries.

McCormick and his spouse sued Nikkel, alleging it had control of the switchgear box and failed to warn him the switchgear was energized. Nikkel moved for summary judgment on the grounds that it owed no duty to McCormick because it did not have control of the switchgear box when McCormick was injured. Nikkel argued the relevant duties rested with Little Sioux, which owned and controlled the switchgear box and controlled the work being performed by McCormick at the time of the accident.

The district court granted Nikkel's motion for summary judgment. It agreed with Nikkel that it owed no duty to McCormick because Nikkel did not have control of the switchgear box when McCormick performed work on it and was injured. The court found, rather, that Little Sioux had retained control over the electrical work that caused McCormick's injury. As the court put it, “[T]he controlling issue is control of the premises.” The court also concluded that whether Petersen warned anyone the switchgear was energized was not a material fact because “Little Sioux had a duty to provide a safe workplace to Troy McCormick, which includes testing electrical equipment to see if it is energized, in accordance with OSHA and Little Sioux policy.”

McCormick appealed, and the court of appeals reversed the district court's grant of summary judgment. It reasoned that Nikkel was in control “when the alleged negligent act occurred,” i.e., when Peterson energized the line prior to McCormick's injury.

Nikkel sought, and we granted, further review.

II. Standard of Review.

We review a trial court's grant of summary judgment for correction of errors at law. On motion for summary judgment, the court must: (1) view the facts in the light most favorable to the nonmoving party, and (2) consider on behalf of the nonmoving party every legitimate inference reasonably deduced from the record. Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” The existence of a legal duty is a question of law for the court to decide.

Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 692–93 (2009) (citations omitted).

III. Analysis.

A. Duty and the Control Principle. An actionable negligence claim requires “the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages.” Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa 2009) (citation and internal quotation marks omitted). “Whether a duty arises out of a given relationship is a matter of law for the court's determination.” Id.

Historically, the duty determination focused on three factors: the relationship between the parties, the foreseeability of harm, and public policy. Id. at 834. In Thompson, we said that foreseeability should not enter into the duty calculus but should be considered only in determining whether the defendant was negligent. Id. at 835. But we did not erase the remaining law of duty; rather, we reaffirmed it. Id. at 834–36. In short, a lack of duty may be found if either the relationship between the parties or public considerations warrants such a conclusion.

In Van Fossen, we made clear again that our previous law of duty was otherwise still alive and well. Thus, we held that employers of independent contractors do not owe a general duty of due care under Restatement (Third) of Torts section 7, but owe only a limited duty as described in Restatement (Second) of Torts section 413. Id. at 696–97. We reiterated that “[u]nder the retained control standard, one who employs an independent contractor is not liable unless he retains control of the contractor's day-to-day operations.” Id. at 697.Van Fossen thus illustrated one example where the relationship between the parties resulted in no general duty of reasonable care. As we explained, The limited nature of the duty owed by employers of independent contractors takes into account the realities of the relationship between employers and their contractors. One of these realities is that employers often have limited, if any, control over the work performed by their contractors. Employers typically hire contractors to perform services beyond the employers' knowledge, expertise, and ability. The contractors' knowledge and expertise places them in the best position to understand the nature of the work, the risks to which...