Sullins v. Third and Catalina Const. Partnership, 1
| Decision Date | 11 September 1979 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 124 Ariz. 114,602 P.2d 495 |
| Parties | Jerry D. SULLINS and Phyllis Sullins, his wife, Appellants, v. THIRD AND CATALINA CONSTRUCTION PARTNERSHIP, a general partnership; and Third and Catalina Association, Ltd., a limited partnership, Appellees. 3795. |
| Court | Arizona Court of Appeals |
This appeal arises from a personal injury action brought by appellants, Jerry D. Sullins and Phyllis Sullins, his wife, as a result of an industrial accident in which Jerry D. Sullins was injured. The complaint sought recovery from numerous defendants, however, the only matter before this Court is the propriety of a final summary judgment entered in favor of appellee, Third and Catalina Construction Partnership (Third and Catalina). This judgment properly contained the express determination of finality pursuant to 16 A.R.S., Rules of Civil Procedure, rule 54(b). In determining the propriety of a grant of summary judgment, the evidence and inferences must be viewed in a light most favorable to the party opposing the motion. Boyle v. City of Phoenix, 115 Ariz. 106, 563 P.2d 905 (1977). The facts stated in this opinion will be stated either as undisputed or in a light most favorable to the plaintiff-appellant.
On March 12, 1973, Jerry D. Sullins (Sullins), an electrician, was injured in an electrical type of industrial accident while working in the Mountain States Telephone building in Phoenix, Arizona. The building was owned by Third and Catalina and was under construction at the time of the accident. Sullins was employed by Amelco Electric Company (Amelco), the electrical subcontractor that was working under direct contract with Mardian Construction Company (Mardian), general contractor. The electrical system for the building was designed by William Meier (Meier), electrical engineer of Meier/Bruington & Associates, and approved by the project architect, Alfred Newman Beadle (Beadle). Amelco, Sullins' employer, installed the electrical system.
There was no ground fault protection system (hereinafter GFP) incorporated in the original electrical design of Meier and therefore no GFP in the electrical system at the time of the accident. Subsequent to the accident a GFP was installed in the subject building, at least in part at the direction of Third and Catalina. A GFP is a device that is designed to disengage the current or power source running through an electrical system when an imbalance occurs.
As part of Sullins' case, it was asserted that it was negligence to omit the GFP, that the GFP was required by statute, that Third and Catalina knew that a GFP was required by law because a consulting firm so advised them, that the omission of a GFP caused the injury to Sullins and/or increased the severity of his injuries, that Third and Catalina retained control over the manner and method in which the electrical system was designed and installed, and that Third and Catalina had the power to change or alter the electrical plan.
Meier testified in deposition that he advised Third and Catalina that neither the Occupational Safety and Health Act nor the City of Phoenix required the installation of a GFP. Meier also testified that he advised his client, Third and Catalina, against the use of a GFP because of its ineffectiveness and poor "track record." These facts were also sworn to by an affidavit of Stanley Dru, a member of the Third and Catalina partnership.
A review of the aforementioned letter of the electrical consultant nowhere indicates that a GFP was required by law, however, it conveyed a recommendation that OSHA standards be complied with to avoid obsolescence.
In determining the propriety of the summary judgment granted in favor of Third and Catalina, the following issues will be considered:
(1) Whether the doctrine of Res judicata bars this action against Third and Catalina.
(2) Whether either the Occupational Safety and Health Act or Restatement (Second) of Torts § 424 impose a duty on Third and Catalina, and if so, was that duty breached.
(3) Whether Third and Catalina owes a duty to Sullins under the retained control doctrine (Restatement (Second) of Torts § 414), and if so, was that duty breached.
A summary judgment was entered in favor of Mardian. No appeal was taken from that ruling and the time to appeal said judgment has expired. It is urged by Third and Catalina that this final summary judgment entered in favor of its co-defendant is a shield against liability based on the doctrine of Res judicata. With this we cannot agree.
In Krasse v. Del E. Webb Development Corp., 26 Ariz.App. 427, 549 P.2d 207 (1956), we articulated the basic doctrine of Res judicata "Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive as to every point decided therein and also as to every point raised by the record which could have been decided with respect to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. Hoff v. City of Mesa, 86 Ariz. 259, 344 P.2d 1013 (1959).
The doctrine of res judicata will operate to bar a claim in certain instances where a litigant was neither a party or in privity with a party to the original judgment, but where his relationship to one who is a party has certain recognized legal significance." 26 Ariz.App. 428, 429, 549 P.2d at 208, 209.
No contention is made that Mardian and appellee are the same parties or privies; however, it is asserted that they have a relationship of recognized legal significance sufficient to trigger the application of Res judicata. In support thereof, they point to Fluor Corporation v. Sykes, 3 Ariz.App. 211, 413 P.2d 270 (1966), wherein it was stated that "liability of a prime contractor to an employee of an independent subcontractor is generally analogous to the liability of an owner or possessor of land to the employee of an independent contractor * * *."
Appellee and Mardian do not have a relationship of recognized legal significance for the purpose of Res judicata. This relationship must have legal significance as distinguished from factual similarity. An example of such legal significance is found in the relationship between an indemnitee with his indemnitor. Further, to bring Res judicata into play as a bar, the recognized relationship must exist between the individuals or entities claiming same in this case, between Third and Catalina and Mardian. The only basis asserted here for the relationship of recognized legal significance is that there is an analogous duty owed by the owner of property with the duty owed by the general contractor to the employee of the independent contractor. Although this may be a factual similarity, this nexus is insufficient to establish a recognized legally significant relationship entitling one of the benefit of Res judicata.
Sullins contends that the Occupational Safety and Health Act imposes a statutory non-delegable duty upon the owner of property which was the situs of the accident, Third and Catalina, to insure that adequate safety precautions are taken by its subcontractors, and failing in this, the owner is subject to liability. In conjunction therewith, appellant argues that Restatement (Second) of Torts § 424 imposes the same duty.
While it is axiomatic that the courts of Arizona will follow the application of the Restatement (Second) of Torts in the absence of authority to the contrary, Mac Neil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958); Barnum v. Rural Fire Protection Company, 24 Ariz.App. 233, 537 P.2d 618 (1975), it is clear that the Restatement (Second) of Torts § 424 does not apply in the area of the law governing the relationship of an owner of property to an employee of an independent contractor. That section, if applied, could create a non-delegable duty owed by a property owner to an employee of an independent contractor. The Arizona courts have expressly rejected the principle of non-delegable duties of contractors in Welker v. Kennecott Copper Company, 1 Ariz.App. 395, 403 P.2d 330 (1965), and therefore Restatement § 424 is inapplicable in this jurisdiction.
Sullins' claim that OSHA, 29 U.S.C. § 651 Et seq. imposes a non-delegable duty upon the owner of property to insure that adequate safety precautions are taken by all subcontractors for the benefit of the subcontractor's employees is similarly without merit. This Court held in Pruett v. Precision Plumbing, Inc., 27 Ariz.App. 288, 554 P.2d 655 (1976), that the express words of the statute indicate that it will not support a cause of action for personal injuries by an employee of a subcontractor against the employer of the subcontractor.
" " (Emphasis supplied.) 27 Ariz.App. at 293, 554 P.2d at 660.
It is unclear whether the OSHA regulations would have required installation of a GFP if said regulations had been applicable in Arizona. This factual controversy is claimed by appellant as a genuine issue of material fact sufficient to preclude summary judgment. In light of the Pruett decision, it is irrelevant whether OSHA required a GFP. Even assuming OSHA did...
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