Pechtl v. Conoco, Inc.

• Decision Date: 11 August 1997
• Docket Number: No. 970051,970051
• Citation: Pechtl v. Conoco, Inc., 567 N.W.2d 813 (N.D. 1997)
• Parties: Ken PECHTL and Sandra Pechtl, Plaintiffs and Appellants, v. CONOCO, INC., Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 813

567 N.W.2d 813

1997 ND 161

Ken PECHTL and Sandra Pechtl, Plaintiffs and Appellants, v. CONOCO, INC., Defendant and Appellee.

Civil No. 970051.

Supreme Court of North Dakota.

Aug. 11, 1997.

Rehearing Denied Sept. 8, 1997.

Fred E. Whisenand, of Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Williston, for defendant and appellee.

Glen R. Bruhschwein, of Mackoff, Kellogg, Kirby & Kloster, PC, Dickinson, for plaintiffs and appellants.

VANDE WALLE, Chief Justice.

¶1 Ken Pechtl and his wife, Sandra, appealed from a summary judgment dismissing their negligence action against Conoco. We hold the Pechtls failed to raise a genuine issue of material fact that Conoco retained control of the operative details of the work of its independent contractor, Steier Oil Field Services, or Steier's foreman, Thomas Schmidt. We affirm.

¶2 In 1989 Conoco and Steier entered into a "blanket contract" for Steier to do oil-field work as an independent contractor for Conoco. ¹ In 1993 Conoco and Steier executed a separate "letter agreement" for Steier to do roustabout work for Conoco.

¶3 Conoco was the operator of the Ridl # 1-11 well in Stark County, and in March 1995 Conoco directed Steier to install a production facility at the well. The Steier employees at the Ridl well included Schmidt and Ken Pechtl. The parties do not dispute the jobsite was unusually muddy, and pipes for the well were not stacked in pipe racks. Instead, the pipes were spread out on the ground. According to Ken Pechtl, he injured his right foot and ankle both when he caught his foot between two pipes lying on the ground and when he stumbled on the slippery and irregular work surface. Pechtl's right leg became infected and was ultimately amputated below the knee.

¶4 The Pechtls sued Conoco, alleging Conoco had retained control of Steier's work at the Ridl well and breached its duty to provide Ken Pechtl with a safe workplace. The Pechtls alleged the combination of an unusually muddy jobsite and pipes lying on the ground created an unsafe workplace. Conoco denied it was negligent and asserted Steier retained control of work at the Ridl well.

¶5 The trial court granted summary judgment for Conoco, concluding Steier's employee, Schmidt, was not an agent or loaned or dual employee of Conoco and therefore Conoco was not vicariously liable for any negligence by Schmidt. The court also ruled Conoco owed no duty to Ken Pechtl because it had not retained control over the manner and method of Steier's work at the Ridl well.

¶6 We review this case under the summary judgment standards of N.D.R.Civ.P. 56. Summary judgment is a procedure for deciding an action without a trial if, after viewing the evidence in the light most favorable to the party opposing summary judgment and giving that party the benefit of all favorable factual inferences which can reasonably be drawn from the evidence, there are no genuine disputes as to either the material facts or the inferences to be drawn from the undisputed facts, or if resolving the disputed facts would not change the result. Kristianson v. Flying J Oil & Gas, Inc., 553 N.W.2d 186 (N.D.1996). If the moving party meets its initial burden of showing the absence of genuine issues of material fact, the opposing party may not rest upon mere allegations or denials in the pleadings, but must present admissible evidence establishing a genuine issue of material fact. Id. A party opposing summary judgment must draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other documents containing testimony or evidence raising a genuine issue of material fact. Id. ¶7 To establish actionable negligence, a plaintiff must show the existence of a duty by the defendant to protect the plaintiff from injury. Madler v. McKenzie County, 467 N.W.2d 709 (N.D.1991). Whether or not a defendant owes a plaintiff a duty is generally a preliminary question of law for the court. Id. If, however, the existence of a duty depends upon resolution of factual issues, the facts must be resolved by the trier of fact. Id.

¶8 The Pechtls contend the trial court erred in dismissing their action because Conoco retained control over Steier's work and Conoco therefore owed Ken Pechtl a duty to exercise that retained control with reasonable care under Restatement (Second) of Torts § 414 (1965).

¶9 Generally, an employer of an independent contractor is not liable for the negligence of its independent contractor. Kristianson; Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445 (N.D.1994); Madler. See Restatement (Second) of Torts § 409 (1965). However, Restatement (Second) of Torts § 414 creates an exception to the general rule for an employer who retains control over the independent contractor's work:

"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."

¶10 In Fleck, 522 N.W.2d at 448, we explained the degree of retained control necessary to impose a duty on the employer:

"The liability created by Section 414 arises only when the employer retains the right to control the method, manner, and operative detail of the work; it is not enough that the employer merely retains the right to inspect the work or to make suggestions which need not be followed. Comment c to Section 414 explains the difference:

" '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. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. 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.' "

¶11 The doctrine of retained control does not make the employer of an independent contractor vicariously liable for the contractor's acts; rather, it creates a separate basis of liability for the employer's failure to exercise retained control with reasonable care. Kristianson; Fleck; Zimprich v. Broekel, 519 N.W.2d 588 (N.D.1994). The duty created by Section 414 may arise either by an express contractual provision giving the employer the right to control the operative details of the independent contractor's work, or by the employer's actual exercise of retained control of the work. Fleck; Madler.

¶12 Here, the express language of Conoco's "blanket contract" with Steier said Conoco "shall have no direction or control of the method or manner in which the Work is performed by [Steier] pursuant to this Contract, but shall be interested solely in determining that the desired results are secured." See fn. 1. That explicit language unambiguously gave Steier control over the method, manner, and operative details of its work for Conoco and did not impose a duty on Conoco. Compare Madler (contract was ambiguous about extent of employer's retained control).

¶13 The Pechtls nevertheless argue there are disputed factual issues about whether Conoco actually retained control of the method, manner, and operative details of Steier's work at the Ridl well. The Pechtls rely upon evidence of several facts which, they assert, raise a genuine issue of material fact about whether Conoco retained control of Steier's work: (1) Schmidt's almost exclusive work for Conoco to the extent he was a virtual employee of Conoco; (2) Conoco's extensive employment of Steier for roustabout work for the previous five years; (3) Conoco's involvement with safety issues at the jobsite, including providing Schmidt with a safety manual; (4) Conoco's control over the surface conditions at the Ridl well; (5) Conoco's decision not to use pipe racks at the Ridl well and to start work under adverse weather conditions; (6) Conoco's furnishing equipment to Steier; and (7) Conoco's control over the entire method of operation at the Ridl well.

¶14 Schmidt had been employed by Steier for 16 years, and during the previous five years, he had performed about 98% of his work for Conoco. There was evidence Conoco provided Schmidt with a radio for his work truck, and he reported daily to the Conoco office. In the absence of any evidence Conoco retained control of the manner, method, or operative details of the work by Steier or Schmidt, however, the duration of Steier's independent contractor relationship with Conoco and Schmidt's almost exclusive history of doing Steier's work for Conoco does not raise a factual inference Conoco actually retained control over Steier's work at the Ridl well.

¶15 The Pechtls failed to identify any specific evidence Conoco actually directed Schmidt or other Steier employees on the manner, method, or operative details of the work at the Ridl well. As we explained in Fleck, it is not enough for an employer to retain a general right to inspect the work progress or receive reports, to make suggestions or recommendations, or to prescribe alterations or deviations because those general rights are usually reserved to employers of independent contractors. Instead, the employer must retain a right of supervision so the independent contractor is not entirely free to do the work in its own way. Kristianson; Fleck; Zimprich; Madler.

¶16 Here, any control of Schmidt by Conoco was in the context of Conoco's contract with Steier and Schmidt's status as Steier's employee and did not exceed the general rights usually reserved to employers of independent contractors. Schmidt said he...