Rogstad v. Dakota Gasification Co.

• Decision Date: 20 March 2001
• Docket Number: No. 20000242.,20000242.
• Citation: 623 N.W.2d 382,2001 ND 54
• Parties: John E. ROGSTAD, Plaintiff and Appellant, v. DAKOTA GASIFICATION COMPANY, a North Dakota corporation, Defendant and Appellee.
• Court: North Dakota Supreme Court

623 N.W.2d 382

2001 ND 54

John E. ROGSTAD, Plaintiff and Appellant, v. DAKOTA GASIFICATION COMPANY, a North Dakota corporation, Defendant and Appellee.

No. 20000242.

Supreme Court of North Dakota.

March 20, 2001.

Steven L. Latham of Wheeler Wolf, Bismarck, ND, for plaintiff and appellant.

Tracy Vigness Kolb (argued) and Lance D. Schreiner of Zuger Kirmis & Smith, Bismarck, ND, for defendant and appellee.

NEUMANN, Justice.

[¶ 1] John E. Rogstad appeals from a summary judgment dismissing his negligence action against Dakota Gasification Company ("DGC"). Rogstad argues the district court erred in granting summary judgment because DGC owed him a duty to provide for his safety. Because we conclude DGC did not owe a duty to Rogstad, as a matter of law, we affirm.

I

[¶ 2] John E. Rogstad was an ironworker employed by Industrial Contractors, Inc. ("ICI"). DGC hired ICI as an independent contractor for the construction of cooling towers at DGC's plant near Beulah.

[¶ 3] In his deposition, Rogstad testified he received orientation and training when he began working as an ICI employee. Rogstad signed a receipt verifying he received the contract personnel safety handbook ("safety manual"). He also signed a form acknowledging he received a copy of the job rules and regulations, an explanation of the hazard communication program including the location of Material Safety Data Sheets, and safety equipment including a hard hat and eye protection. Rogstad also testified he was shown an orientation video.

[¶ 4] Rogstad's ICI foreman was Larry Morris. Rogstad testified that if he had a safety concern or required additional safety equipment, he would raise the concern or request with Morris. Twice during his deposition, Rogstad testified Morris directed Rogstad where to work at the plant.

[¶ 5] Although Rogstad worked on various jobs during his time at the plant, on July 9, 1996, Rogstad and a coworker were assigned to work in a small dome used to store ammonium sulfate byproduct. Rogstad testified that Morris and Robert Vayda took Rogstad and his coworker to the dome and talked to them about the work to be performed. The parties disputed whether Vayda was employed by DGC or by another independent contractor. Rogstad testified Morris and Vayda directed him to perform welding work inside the dome and to construct a doorway to prevent ammonium sulfate from leaving the dome. Rogstad testified Vayda showed Morris what he wanted done in the dome. Rogstad also testified Vayda told Rogstad and his coworker what work needed to be done.

[¶ 6] Rogstad worked in the dome approximately a day and a half. Rogstad testified that both Morris and Vayda visited the dome a couple of times daily to check on the work. Rogstad testified he believed Vayda was a DGC employee and was in charge of the project. [¶ 7] Rogstad testified that while he was working in the dome, his eyes burned and he had trouble breathing. Rogstad stated he mentioned to both Morris and Vayda that he was uncomfortable and that his lungs were burning, but he received no response. As Rogstad and his coworker were moving out of the dome, Rogstad claims another DGC employee whom he did not know, wearing a DGC uniform and hard hat, told Rogstad and his coworker they should not be working in the dome because the air had not been tested. Rogstad testified another DGC employee came to the work site with an air tester shortly after and told Rogstad and his coworker they were not supposed to be in the dome.

[¶ 8] Rogstad continued working at the plant until July 25, 1996, when he experienced difficulty breathing and was taken to the hospital. Rogstad was diagnosed with reactive airway dysfunction syndrome.

[¶ 9] Rogstad sued DGC, claiming negligence for failing to provide for his safety while he was working in the dome. DGC moved for summary judgment asserting, as a matter of law, it did not have a duty to provide for Rogstad's safety. The district court granted DGC's motion for summary judgment dismissing Rogstad's negligence action. Rogstad appeals.

II

[¶ 10] Summary judgment under Rule 56(c), N.D.R.Civ.P., is a method for promptly and expeditiously disposing of a controversy without trial if either party is entitled to a judgment as a matter of law and if no dispute exists as to either the material facts, or the inferences to be

drawn from undisputed facts, or if resolving factual issues would not alter the results. Mead v. Farmers Union Mut. Ins. Co., 2000 ND 139, ¶ 12, 613 N.W.2d 512. A district court deciding a motion for summary judgment is required to view the evidence in the light most favorable to the resisting party. Schaefer v. Souris River Telecomm. Coop, 2000 ND 187, ¶ 8, 618 N.W.2d 175. Although the party seeking summary judgment bears the initial burden of showing there is no genuine issue of material fact, the party opposing the motion may not simply rely upon the pleadings or unsupported allegations. Grinnell Mut. Reinsurance Co. v. Farm & City Ins. Co., 2000 ND 163, ¶ 18, 616 N.W.2d 353. Rather, the resisting party must present competent admissible evidence by affidavit or other comparable means raising an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact. Id. at ¶ 18. Whether the district court properly granted summary judgment is a question of law subject to de novo review. Garofalo v. Saint Joseph's Hosp., 2000 ND 149, ¶ 6, 615 N.W.2d 160.

[¶ 11] Here, the district court granted DGC's summary judgment motion, concluding no genuine issue of material fact existed regarding whether DGC owed a legal duty to Rogstad and DGC was entitled to judgment as a matter of law.

[¶ 12] To establish a cause of action for negligence, a plaintiff must show the defendant has a duty to protect the plaintiff from injury. Pechtl v. Conoco, Inc., 1997 ND 161, ¶ 7, 567 N.W.2d 813. We have stated negligence consists of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to discharge the duty, and a resulting injury proximately caused by the breach of the duty. Gullickson v. Torkelson Bros., Inc., 1999 ND 155, ¶ 7, 598 N.W.2d 503. Whether a duty exists is generally a preliminary question of law for the court to decide. Id. at ¶ 6. If no duty exists, there is no negligence. Id. at ¶ 7.

III

[¶ 13] Rogstad argues the district court erred in granting summary judgment because DGC owed him, as a matter of law, a duty to provide for his safety. [¶ 14] Generally, one who employs an independent contractor is not liable for the negligence of the independent contractor. Pechtl, 1997 ND 161, ¶ 9,567 N.W.2d 813; 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.

[¶ 15] In Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 448 (N.D.1994), we explained the degree of retained control necessary to impose a duty on the employer of an independent contractor:

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.

[¶ 16] The doctrine of retained control does not make the employer vicariously liable for the independent contractor's acts; rather, it creates an independent basis of liability for the employer's failure to exercise retained control with reasonable care. Pechtl, 1997 ND 161, ¶ 11, 567 N.W.2d 813. The duty created by Section 414 may arise through express contractual provisions retaining the right to control some part of the operative details of the independent contractor's work or through the employer's actual exercise of retained control of the work. Id. at ¶ 11.

[¶ 17] Rogstad argues DGC had a duty to provide for his safety because (1) DGC retained responsibility through express contractual provisions; and (2) DGC actually retained control over his work.

A

[¶ 18] Rogstad asserts the DGC safety manual and orientation video are contractual documents containing express provisions undertaking affirmative duties and retaining DGC's responsibility for his safety and the safety of other employees of independent contractors at the plant.

[¶ 19] Under N.D.C.C. § 9-07-02, the language of a contract governs its interpretation if the language is clear and explicit and does not involve an absurdity. The contract between ICI and DGC provided that the documents listed in the Table of Contents were the "Contract Documents." It also provided:

[The] Contract Documents set forth the entire agreement between the

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