Miller v. Westcor Ltd. Partnership

• Decision Date: 05 December 1991
• Docket Number: No. 1,CA-CV,1
• Citation: 831 P.2d 386,171 Ariz. 387
• Parties: Elizabeth MILLER and William V. Latham, Plaintiffs-Appellants, v. WESTCOR LIMITED PARTNERSHIP, an Arizona partnership d/b/a/ Flagstaff Mall, Defendant-Appellee. 90-095.
• Court: Arizona Court of Appeals

Page 386

831 P.2d 386

171 Ariz. 387

Elizabeth MILLER and William V. Latham, Plaintiffs-Appellants, v. WESTCOR LIMITED PARTNERSHIP, an Arizona partnership d/b/a/ Flagstaff Mall, Defendant-Appellee.

No. 1 CA-CV 90-095.

Court of Appeals of Arizona Division 1, Department D.

Dec. 5, 1991.

As Corrected Jan. 3, 1992.

Reconsideration Denied Jan. 15, 1992.

Review Denied June 30, 1992.

[171 Ariz. 389] Renaud, Cook, Videan, Geiger & Drury, P.A. by J. Gordon Cook and William R. Mettler, Jr., Phoenix, for plaintiffs-appellants.

Mangum, Wall, Stoops & Warden by Daniel J. Stoops, Flagstaff, for defendant-appellee.

OPINION

CLABORNE, Judge.

We are faced with an issue not before raised in Arizona: Whether a landowner can be held liable for the acts of an independent contractor, when the independent contractor negligently conducts a fireworks display. We must also decide whether parents of an injured child may claim loss of consortium when the child is severely injured, but not catastrophically so.

Elizabeth Miller and William Latham filed suit against Westcor Limited Partnership (Westcor) and Atlas Enterprises (Atlas) for injuries suffered during a fireworks display at the Flagstaff Mall. The trial court granted partial summary judgment in favor of Westcor, ruling that Westcor was not vicariously liable for the negligence of its independent contractor, Atlas Enterprises. The trial court also granted Westcor's motion in limine precluding evidence of appellants' claim for loss of consortium. We reverse as to both issues.

BACKGROUND

On July 4, 1987, Elizabeth Miller and her daughter, Michelle Latham, attended a fireworks display at the Flagstaff Mall in Flagstaff, Arizona. Westcor, the owner of the mall, contracted with Atlas Enterprises to conduct the fireworks exhibition. The contract provided that Atlas would supply all fireworks and materials and a trained master pyrotechnician, that employees of Atlas would be covered by worker's compensation and that Atlas would procure an insurance policy providing coverage for Atlas and for the sponsors and committees connected with the fireworks display. Westcor was responsible for crowd control and agreed to provide four laborers to assist the master pyrotechnician.

The firework shells used in the display ranged in size from two inches to twelve inches in diameter. The shells traveled at a speed of approximately 176 feet per second and exploded at a distance that was dependent upon their size. A six-inch mortar shell traveled six hundred feet before exploding and a ten-inch mortar shell traveled one thousand feet before exploding. A six-inch shell had a spread of four hundred feet in diameter upon explosion. Several hundred fireworks shells were set to be used during the display.

The fireworks exhibition began at about 9:00 p.m. Approximately ninety percent through the show, a firework shell misfired and exploded while in its launch tube. The explosion destroyed the launch tube and apparently knocked several mortar tubes out of their positions. One of the shells launched directly toward the crowd. The shell exploded on the ground injuring Michelle and Elizabeth as well as several other individuals.

Michelle was the most severely injured of the plaintiffs. She suffered third-degree burns on both shoulder blade areas, her right elbow and ear, and her entire buttocks. She also suffered second-degree burns to her right flank.

The plaintiffs filed suit on October 23, 1987, naming as defendants Westcor and Atlas among others. The suit alleged in count one negligence of Westcor in failing to provide plaintiffs with a reasonably safe place from which to view the display, in count two the negligence of Atlas in hiring, training, and supervising its agents and/or employees, in count three the vicarious liability of Westcor for the acts of Atlas, and, in count four strict liability of Westcor and Atlas for undertaking an abnormally dangerous activity.

Westcor moved for partial summary judgment on counts three and four of the complaint. Westcor contended that it was not automatically liable for the plaintiffs' injuries upon a finding that Atlas was negligent because Atlas was an independent contractor, not an employee or agent. Westcor also contended that it was not strictly liable because a fireworks display is not an ultrahazardous activity. The plaintiffs responded and filed their own motion for summary judgment on count three of the complaint. They contended that Westcor could not delegate responsibility for their injuries to Atlas.

Westcor then moved in limine to exclude all evidence relating to emotional distress suffered by Elizabeth Miller and William Latham experienced as a result of Michelle's injuries. The appellants responded that they were entitled to assert a claim for loss of consortium to recover for the natural grief and anger felt by all parents when a child is injured.

The trial court concluded there was no issue of material fact and granted summary judgment in favor of Westcor on both counts three and four of the complaint. The trial court also concluded that appellants failed to establish a claim for loss of consortium and granted Westcor's motion in limine. ¹

Appellants raise two issues on appeal. Whether Westcor is vicariously liable for the negligence of Atlas, its independent contractor, in conducting a fireworks display on Westcor property, and whether the appellants presented sufficient evidence of loss of consortium to send their claim to the jury. ²

DISCUSSION

Since this is a grant of summary judgment, we view the facts in the light most favorable to the appellants. Independent Nat'l Bank v. Westmoor Elec., 164 Ariz. 567, 569, 795 P.2d 210, 212 (App.1990). Because the material facts in this case are for the most part undisputed, our role is to determine whether the trial court correctly applied the substantive law to these facts. Schroeder v. Hudgins, 142 Ariz. 395, 397, 690 P.2d 114, 116 (App.1984).

1. Westcor's liability for the negligence of Atlas

As a general rule, a possessor of land is not liable for the negligence of an independent contractor hired to conduct some activity on the land absent some independent negligence on the part of the possessor. Fort Lowell-NSS Ltd. Partnership v. Kelly, 166 Ariz. 96, 101, 800 P.2d 962, 967 (1990). The reasoning behind the rule is based on risk allocation. "[S]ince the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor's own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and administering and distributing it." Currie v. Sechrist, 119 Ariz. 466, 469, 581 P.2d 700, 703 (App.1978) (quoting Prosser and Keeton, The Law of Torts § 71 (4th ed. 1971)). ³

However, numerous exceptions to the general rule of non-liability exist which, if applicable, render an employer liable for a contractor's negligence even though the employer is not personally negligent. Fort Lowell-NSS Ltd. Partnership, 166 Ariz. at 101, 800 P.2d at 967. The policy reasons justifying such a departure are that the employer is the one who primarily benefits from the contractor's work, the employer is free to select the contractor and may insist on one that is financially responsible and competent, and the employer has the ability to internalize the cost of insurance necessary to distribute the risk as a cost of doing business. Prosser and Keeton, The Law of Torts § 71 (5th ed. 1984). See also Aceves v. Regal Pale Brewing Co., 24 Cal.3d 502, 509, 156 Cal.Rptr. 41, 44, 595 P.2d 619, 622 (1979). Cf. Koepke v. Carter Hawley Hale Stores, Inc., 140 Ariz. 420, 424, 682 P.2d 425, 429 (App.1984) (citing policy reasons in adopting Restatement § 422(a)).

The exceptions in this case are found in the Restatement (Second) of Torts §§ 416, 422(a), 423 and 427 (Restatement). Because we conclude that Westcor may be liable for the negligence of Atlas under section 427, we do not address liability under the other sections of the Restatement.

a. Inherently Dangerous Activities

The inherently dangerous exception provides that

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.

Restatement § 427. See also, S.A. Gerrard Co. v. Fricker, 42 Ariz. 503, 507, 27 P.2d 678, 680 (1933).

It is not necessary that the work be of a kind which cannot be done without risk of harm to others nor that it involve a high degree of risk of such harm. Restatement § 427 comment b. If the risk can be recognized in advance, it is sufficient if the risk of harm is either inherent in its nature, or is a risk normally expected in doing the task. Id. The rule applies where the work involves the use of instrumentalities, such as fire or high explosives which require constant attention and skillful management in order that they may not be harmful to others. Id. (emphasis added).

No bright line exists for classifying work which is inherently dangerous and that which is not. E. L. Jones Constr. Co. v. Noland, 105 Ariz. 446, 456, 466 P.2d 740, 750 (1970). The determination rests upon the facts of each case. Bible v. First Nat'l Bank of Rawlins, 21 Ariz.App. 54, 57, 515 P.2d 351, 354 (1973). Two factors are important to our analysis: (1) the risk of harm cannot be eliminated through the exercise of reasonable care; and (2) the risk must be to the person, land or chattels of another. Id. Clearly, the second factor is met in this case. Therefore, we are left with the question of whether the risk of harm from a public fireworks exhibition can be eliminated through the exercise of reasonable care.

This...