Schlenk v. Northwestern Bell Telephone Co., Inc., 10259

• Citation: 329 N.W.2d 605
• Decision Date: 27 January 1983
• Docket Number: No. 10259,10259
• Parties: Roger SCHLENK, Plaintiff and Appellant, v. NORTHWESTERN BELL TELEPHONE COMPANY, INC., Defendant and Appellee. and NORTHWESTERN BELL TELEPHONE COMPANY, a corporation, Third-Party Plaintiff and Appellee, v. AERIAL CONTRACTORS, INC., Third-Party Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 605

329 N.W.2d 605

Roger SCHLENK, Plaintiff and Appellant, v. NORTHWESTERN BELL TELEPHONE COMPANY, INC., Defendant and Appellee. and NORTHWESTERN BELL TELEPHONE COMPANY, a corporation, Third-Party Plaintiff and Appellee, v. AERIAL CONTRACTORS, INC., Third-Party Defendant and Appellee.

Civ. No. 10259.

Supreme Court of North Dakota.

Jan. 27, 1983.

Tenneson, Serkland, Lundberg, Erickson & Marcil, Fargo, for appellant Roger Schlenk; argued by Paul F. Richard, Fargo.

Conmy, Feste & Bossart, Ltd., Fargo, for appellee Northwestern Bell Tel. Co., Inc.; argued by Wickham Corwin, Fargo.

Nilles, Hansen, Selbo, Magill & Davies, Ltd. and Pancratz, Yuill, Wold, Johnson & Feder, Fargo, for appellee Aerial Contractors, Inc.; argued by Duane H. Ilvedson, Fargo.

PAULSON, Justice.

Roger Schlenk appeals from a judgment of the District Court of Cass County dated June 14, 1982, which granted Northwestern Bell's motion for summary judgment and dismissed Schlenk's claim. We affirm.

On November 20, 1974, Schlenk was seriously injured when he became entangled in a "wire winder" machine which was being used to roll dismantled telephone wires onto a spool. At the time of his injury, Schlenk was employed by Aerial Contractors, Inc., an independent contractor ¹ hired by Northwestern Bell to remove abandoned above-ground telephone lines in the Watford City area.

Aerial Contractors was a contributing employer to the North Dakota Workmen's Compensation Bureau and had secured workmen's compensation coverage for Schlenk. On November 29, 1974, Schlenk filed a standard compensation and medical expense claim with the North Dakota Workmen's Compensation Bureau. The Bureau accepted his claim, and Schlenk has received various workmen's compensation benefits since the date of his injury.

On May 2, 1977, Schlenk commenced an action against Aerial Contractors, James L. Nesheim, Jean A. Nesheim, and Cameron Geritz, seeking damages for the injuries he suffered on November 20, 1974. His complaint alleged intentional, deliberate, and willful injury; strict liability in tort; breach of warranty; and negligent design and manufacture of the wire winder. Aerial Contractors moved for summary judgment. Summary judgment was entered in the District Court of Cass County on October 27, 1977, dismissing Schlenk's complaint with prejudice. On appeal, in an opinion dated June 28, 1978, this court affirmed the summary judgment against Schlenk. ²

With a summons and complaint dated August 1, 1980, Schlenk commenced a second lawsuit, naming Northwestern Bell as the defendant, seeking to recover damages for the injuries he suffered on November 20, 1974. Schlenk alleged that Northwestern Bell was liable for his injuries because the nature of the work was inherently dangerous and Bell had: (1) retained control over the project; (2) failed to exercise reasonable care in employing a competent contractor; (3) failed to properly supervise the work; (4) violated statutes and regulations, thereby constituting the creation of a nuisance; and, (5) ratified the unsafe manner of Aerial Contractors' actions. Subsequently, Bell, as a third-party plaintiff, pursuant to Rule 14(a) of the North Dakota Rules of Civil Procedure, served a third-party summons and complaint upon Aerial Contractors.

On March 18, 1982, Bell filed a motion for summary judgment. A hearing on the motion was held before the District Court of Cass County on March 31, 1982. The district court determined as a matter of law that Schlenk did not fall within the scope of any duties which might have been owed by Bell, and, further, that even if Schlenk did fall within the scope of any such duties, the evidence adduced in the form of depositions and affidavits failed to establish that as a matter of law any duty was owed by Bell to Schlenk. Accordingly, summary judgment was entered on June 14, 1982, dismissing Schlenk's complaint. From this judgment Schlenk appeals.

The bases for Schlenk's contentions for holding Bell liable are premised on Secs. 411, 413, 414, 416, 424, and 427 of the Restatement (Second) of Torts (1965). The parties have urged this court to decide whether or not the word "others" as used in these sections ³ includes employees of an independent contractor, so as to allow the cause of action against Bell. We deemed it unnecessary to decide the question in Peterson v. City of Golden Valley, 308 N.W.2d 550, 554 (N.D.1981). We again decline to decide the issue because, even if we were to accept Schlenk's contention that employees of an independent contractor fall within the meaning of the term in our State [see Olheiser v. Annco, Inc., 219 N.W.2d 116 (N.D.1974); Boettner v. Twin City Construction Company, 214 N.W.2d 635 (N.D.1974); Secs. 65-01-02(5)(c) and 65-01-08, N.D.C.C.], we agree with the district court that the evidence does not establish that Bell owed a duty to Schlenk under any of the theories posited, and, thus, Schlenk could not prevail as a matter of law.

Our court has recognized the general rule that an employer is not liable for acts or omissions of its independent contractor. Lumpkin v. Streifel, 308 N.W.2d 878, 879 (N.D.1981); Peterson v. City of Golden Valley, supra 308 N.W.2d at 553; Fettig v. Whitman, 285 N.W.2d 517, 521 (N.D.1979); Foremost Insurance Co. v. Rollohome Corporation, 221 N.W.2d 722, 727 (N.D.1974); Newman v. Sears, Roebuck & Co., 77 N.D. 466, 43 N.W.2d 411, 414 (1950). See also Restatement (Second) of Torts Sec. 409 (1965). It has been stated, however, that the general rule of employer nonliability "is now primarily important as a preamble to the catalog of its exceptions". Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co., 201 Minn. 500, 277 N.W. 226, 228 (1937). We have stated that a determination of the applicability of these exceptions to the general rule of employer nonliability is a question of law which the court must decide before allowing a jury to hear the evidence. Peterson v. City of Golden Valley, supra. In that case we stated, supra 308 N.W.2d at 553:

"A determination that an exception to the general rule of employer nonliability applies in a given case is tantamount to a determination that the employer in that case has a duty. Whether or not one owes a duty to another in a case such as this is an issue of law which the court must resolve before allowing a jury to hear evidence of negligence and proximate cause."

The trial court, as noted above, determined as a matter of law that none of the exceptions to the general rule relied upon by Schlenk were applicable in the instant case. We will proceed to consider the appropriateness of this determination as to each of the liability theories propounded by Schlenk.

I

VICARIOUS LIABILITY BASED UPON PECULIAR RISK OR INHERENTLY

DANGEROUS WORK

Schlenk relies on Secs. 416 and 427 of the Restatement (Second) of Torts in arguing that Bell should be found vicariously liable for his injuries because operation of the "wire winder" machine was peculiarly risky and inherently dangerous, and, as such, the employer's duty to Schlenk is not delegable to the independent contractor, i.e., Aerial Contractors. Our court has recognized that an employer can be found vicariously liable for the acts of its independent contractor if the work from which the injury results fits within either Sec. 416 or Sec. 427. See Peterson v. City of Golden Valley, supra 308 N.W.2d at 553; Fettig v. Whitman, supra 285 N.W.2d at 521-522; Foremost Insurance Co. v. Rollohome Corporation, supra; Ruehl v. Lidgerwood Rural Telephone Co., 23 N.D. 6, 135 N.W. 793 (1912). Sections 416 and 427 of the Restatement (Second) of Torts (1965) provide:

"Sec. 416. Work Dangerous in Absence of Special Precautions One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

"Sec. 427. Negligence as to Danger Inherent in the Work 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."

These sections have been most recently interpreted by our court in Fettig v. Whitman, 285 N.W.2d 517 (N.D.1979); and Peterson v. City of Golden Valley, 308 N.W.2d 550 (N.D.1981). In Fettig v. Whitman, supra, the plaintiff was seriously injured when she fell through an open stairwell in a house being constructed for her and her husband. She sued the general contractor asserting that it was vicariously liable for the negligence of the carpenter it employed as a subcontractor to build the house. Affirming the district court's dismissal of the general contractor from the subsequent action, Justice Sand, writing for the court, determined that neither Sec. 416 nor Sec. 427 applied under the facts of the case. Analyzing the "peculiar risk" requirement of Sec. 416 by referring to Comment b under Sec. 413 of the Restatement, we said, in Fettig, supra 285 N.W.2d at 522:

" 'It is obvious that an employer of an independent contractor may always anticipate that if the contractor is in any way negligent toward third persons, some harm to such persons may result.... This Section has no reference to such a general anticipation of the possibility that the contractor may in some way be negligent. It is not concerned with the taking of routine precautions, of a kind which any careful contractor could reasonably be expected to take, against all of the ordinary and customary...