Moloso v. State

Decision Date07 May 1982
Docket NumberNo. 4971,4971
PartiesAlyss L. MOLOSO, individually and as personal representative of the Estate of Robert Moloso, deceased, and Linda K. Moloso, individually and as personal representative of the Estate of Joseph R. Moloso, deceased, Appellants, v. STATE of Alaska, Appellee.
CourtAlaska Supreme Court
OPINION

Before RABINOWITZ, C. J., CONNOR, BURKE and COMPTON, JJ., and DIMOND, Senior Justice. *

CONNOR, Justice.

This is an appeal in a wrongful death action brought by the personal representatives of Robert Moloso and Joseph Moloso against the State of Alaska. Decedents were killed on June 21, 1977, by a rock slide while working on a state highway project in Keystone Canyon north of Valdez, Alaska. The ultimate question on appeal is whether the superior court properly directed a verdict in favor of the state.

The state desired to have one of its existing roads re-routed. To that end it developed plans and specifications and called for contractors' bids. A joint venture consisting of Central Construction Co., Manson Construction and Engineering Co., Osberg Construction Co., and Ghemm Company, Inc. (hereafter "CMOG") was awarded the project. CMOG subcontracted the rock excavation portion of the project to the Ferrante Corporation. The Molosos, two heavy equipment operators employed by the excavation subcontractor, were killed in a rock slide while in the course and scope of their employment. In the wrongful death action which followed, it was alleged that the state proximately caused the Molosos' deaths by failing to prudently discharge its affirmative duties to assure job safety, in its status both as owner of the premises on which the rock slide occurred and as employer of the general contractor, CMOG.

After both sides presented evidence at trial, the superior court granted a motion for a directed verdict in favor of the state. The court also awarded to the state attorney's fees in the amount of $25,000.

In reviewing motions for a directed verdict we must view the evidence in the light most favorable to the non-moving party. As we stated in Teller v. Anchorage Asphalt Paving Co., Inc., 545 P.2d 177 (Alaska 1976):

"In reviewing a lower court's rulings pertaining to motions for directed verdict we are required to view the evidence in the light most favorable to the non-moving party, and to afford him the benefit of all inferences which the evidence fairly supports. Moreover,

It is well established that the proper role of this court, on review of motions for directed verdict ..., is not to weigh conflicting evidence or judge the credibility of the witnesses, but is rather to determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable men could not differ in their judgment.

In such cases the appellate court applies an objective test and if there is room for diversity of opinion among reasonable people, then the question is one for the jury to decide. In other words, a jury question, or question of fact, exists whenever it can be said that from the evidence and all reasonable inferences to be drawn therefrom, fair minded people in the exercise of reasonable judgment could reach differing conclusions on the issue in controversy." (footnotes omitted).

545 P.2d at 180.

Thus, if it appears from the facts of this case that a legal duty was owing to the Molosos, and if it appears that a jury reasonably could have found that such a duty was breached, then the granting of a directed verdict would be error. Therefore, we must set forth the pertinent facts in order to determine whether the directed verdict was properly entered.

I.

The Richardson Highway, as it winds through the Keystone Canyon, follows the course of the Lowe River and, at one point in the canyon, runs through a tunnel. For some time this tunnel had been a problem for the highway department in terms of maintenance and safety. The state decided to re-route the highway and avoid the tunnel by bridging across the Lowe River to the west bank, and then bridging back to the east bank at the other end of the tunnel. The rock cliffs in this area, particularly on the west bank, rise several hundred feet on a very steep incline. As some rock had to be removed on both banks, this was considered one of the most difficult and complex excavation projects the state had ever undertaken.

Several geological studies were made of the rock slopes in the area, some by state geologists and one by C. O. Brawner, an independent consulting geotechnical engineer retained by the state. All of the studies indicated that the rock faces on the west slope were fractured and underlain with many discontinuities or seams on about a 60o angle, thus making the area susceptible to slope failure, or rock slides. These discontinuities posed a special problem for excavation because by cutting across these joints and layers of rock, the support for one or more layers could be destroyed. As precautions against these hazards, Brawner recommended that a pre-bid conference be held with the potential bidders to discuss precautions, that a "stability inspector" be retained for the project, and that the contract specifications provide for loose rock removal, rock bolting, and excavation on the west bank from the top down (to prevent work from being performed under the rock) at about a 60o angle (to coincide with the major bedding planes).

The Department of Transportation prepared plans and specifications for the project and on November 8, 1976, issued a call for bids. While the plans and specifications did not inform the potential bidders of the instability of the rock slopes, they did advise that the state had done foundation reports in the area and that the reports were available for contractor review. 1 The evidence suggests that no pre-bid conference was held, and that the bidders were not otherwise cautioned as to the hazards in the area. The contract specifications did provide for the presence of a state engineer and reserved the right of the state to suspend or change the work based upon the engineer's field evaluations. Additionally, the specifications provided that rock removal was to be at an angle consistent with the angle of the bedding planes and from the top down, but there was no provision for rock-bolting.

After it was awarded the project, CMOG suggested two "value engineering proposals" prepared by Bruce Campbell, an engineer, as alternatives to the state's plans and specifications. A value engineering proposal is the contractor's presentation of an alternative method of achieving the same result at a lower cost. If the plan is accepted the state and the contractor split the cost savings. Change orders were issued by the state for the work to proceed on the basis of value engineering proposal No. 2 (VE-2). VE-2 involved a smaller bridge abutment on the west bank with reduced, but steeper, rock excavations on the west slope as compared to the original plan. Additionally, this plan required excavation beginning at road level and proceeding upward so that at times workers were under overhanging rock.

In May, 1977, the contractor staked the slopes on the west bank for excavation. When a state geologist, Mr. Lowell, observed that the slopes were steeper than the original plan had specified, he reported to the state project engineer, Mr. Gentry, the possibility of undercutting and slope failure, whereupon Gentry issued a stop-work order. After a series of meetings between state personnel and representatives of the contractor, the state's senior construction engineer, Mr. Shumway, overruled Gentry's decision and ordered the work to resume on the basis of VE-2.

On June 21, 1977, a D-8 Caterpillar tractor operated by Joseph Moloso was pioneering an access road on the west bank from the end of a work bridge to an area that had been blasted previously, so that the rubble could be removed. Although the tractor was not working in an area in which the state would pay for excavation (within the "pay lines"), there was evidence that it was doing work necessary for the completion of the project. At approximately 10:10 a. m., a rock slide killed Joseph Moloso as he was operating the tractor, and also killed Robert Moloso, who was standing in the area.

In this appeal, the Molosos advance several theories according to which the State of Alaska breached a duty of due care owed to the decedents. Under the Restatement (Second) of Torts (1965) the Molosos argue that the state assumed common law duties as an employer exercising control over an independent contractor (§ 414), as an employer failing to provide special precautions in risky work to be done by an independent contractor (§ 413), as an employer giving negligent orders or directions to an independent contractor (§ 410) and as a landowner aware of a dangerous condition (§ 343).

The state contends that the record is devoid of any evidence which will support liability on the part of the state under any of the theories asserted by the Molosos. 2 We disagree.

II.

In general, the employer of an independent contractor owes no duty to the independent contractor's employees to protect them from the negligence of the employees' own master. On the other hand, the employer of the independent contractor does owe to these servants the duty to avoid endangering them by the employer's own negligent actions or omissions. Sloan v. Atlantic Richfield Co., 552 P.2d 157, 160 (Alaska 1976). As an example of this duty, the "retained control" theory of recovery is set forth in Restatement (Second) of Torts § 414 (1965) and has been expressly adopted by this court. 3 Section 414 provides:

"Negligence in Exercising Control Retained By Employer. One who...

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