Tallman v. City of Hurricane, 960459.

• Decision Date: 01 June 1999
• Docket Number: No. 960459.,960459.
• Citation: 985 P.2d 892,1999 UT 55,1999 Utah 55
• Parties: Graham TALLMAN, Sr., Mary Tallman, and Jeanette Yazzie, as mother and natural guardian of Timothy Tallman, Jr., the child of Timothy Tallman, being legal heirs of Timothy Tallman, deceased, Plaintiffs and Appellants, v. The CITY OF HURRICANE, Haukos Construction, Inc., a Texas corporation, John Does I through V, and Black Corporations I through V, Defendants and Appellees.
• Court: Utah Supreme Court

985 P.2d 892

1999 UT 55

1999 Utah 55

Graham TALLMAN, Sr., Mary Tallman, and Jeanette Yazzie, as mother and natural guardian of Timothy Tallman, Jr., the child of Timothy Tallman, being legal heirs of Timothy Tallman, deceased, Plaintiffs and Appellants, v. The CITY OF HURRICANE, Haukos Construction, Inc., a Texas corporation, John Does I through V, and Black Corporations I through V, Defendants and Appellees.

No. 960459.

Supreme Court of Utah.

June 1, 1999.

Robert J. Debry, Albert W. Gray, Nancy A Mismash, Salt Lake City, for plaintiffs.

Tim Dalton Dunn, Glen T. Hale, Salt Lake City, for defendants.

DURHAM, Associate Chief Justice:

¶ 1 This is a wrongful death case arising from the death of Timothy Tallman in a construction accident. Tallman's heirs appeal the district court's order of summary judgment entered against them. When reviewing summary judgment determinations, we review for correction of error, considering the facts and inferences in the light most favorable to the non-moving party. See Nelson v. Salt Lake City, 919 P.2d 568, 571 (Utah 1996)

; Stevensen v. Goodson, 924 P.2d 339, 342 (Utah 1996). With that standard in mind, we review the facts of record.

¶ 2 The City of Hurricane employed Progressive Construction Company (Progressive), a general contractor, to install water lines. Progressive then subcontracted with appellee Haukos Construction Company (Haukos) to dig the trenches in which Progressive would lay the pipe. Progressive contractually agreed to provide "all trench protection and shoring." Tallman, a Progressive employee, died when a rock from an unshored trench — dug by Haukos — fell on his head while he lubricated pipe joints. Haukos knew Progressive's workers would be in the trench and was also aware that Progressive had not provided trench protection. Haukos's policy was to not provide warning to general contractors of the need for trench protection unless their own employees were working in the trenches.

¶ 3 The trench was 7½ feet deep at the point where the falling rock killed Tallman. The construction contract required Haukos to dig the trench between 5½ and 6 feet deep. The Occupational Safety and Health Act (OSHA) requires shoring for trenches 5 feet or deeper that are not entirely in stable rock. See 29 C.F.R. § 1926.652(a) (1997). While Progressive believed that the digging occurred in solid rock, no engineer examined the trench for Progressive.

¶ 4 The appellants, Tallman's heirs, sued Haukos for common law negligence. The trial court granted Haukos's request for summary judgment, stating:

[A]s a matter of law, the subcontract between Haukos and Progressive imposed no duty upon Haukos to make the subject workplace safe; Haukos was not in control of the deceased employee or his actions, and Haukos was not in control of the workplace when and where the accident occurred; UOSHA [Utah Code Ann. 34-A-6-202(1) (1997)] regulations did not create a duty owed by Haukos to any employee of Progressive.

¶ 5 As noted earlier, we review summary judgment decisions for correction of error. "Furthermore, because negligence cases often require the drawing of inferences from the facts, which is properly done by juries rather than judges, `summary judgment is appropriate in negligence cases only in the clearest instances.'" Nelson, 919 P.2d at 571 (quoting Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991)). However, "without a duty, there can be no negligence as a matter of law, and summary judgment is appropriate." Rocky Mountain Thrift Stores Inc. v. Salt Lake City Corp., 887 P.2d 848, 852 (Utah 1994). If Haukos owed Tallman a duty under any legal theory, and there are disputed facts as to whether that duty was breached, then this court must reverse the summary judgment.

¶ 6 As the district court correctly held, neither the contract nor OSHA standards, by themselves, created a duty which ran from Haukos to Tallman. We conclude, however, that a common law duty may have existed, depending on factual issues still in dispute. Haukos has urged us to hold that the contract language requiring Progressive to provide "all trench protection and shoring" precludes any common law duty on its part to ensure that the trenches were safe when turned over to Progressive's workers. Certainly, as to financial responsibility for the cost of shoring and obligations to perform, the contract governs the duties of the parties. However, in some circumstances, the common law imposes independent duties on activities, even those otherwise regulated by contract, that create risks of harm to third parties. Thus, although Haukos had no contractual obligation to shore or protect any of the trenches it created, it may have had an obligation to warn users or even to prevent the use of those trenches while they remained in a dangerous condition known to Haukos.

I. FORESEEABILITY RULE

¶ 7 The common law originally relieved a contractor of any liability for injuries to third parties after the contractee accepted the work. See Horton v. Goldminer's Daughter, 785 P.2d 1087, 1089 (Utah 1989)

(discussing history of old rule and emergence of new rule); Thompson v. Burke Eng'g Sales Co., 252 Iowa 146, 106 N.W.2d 351, 355-56 (1960) (overturning old rule and adopting foreseeability rule). Courts began to abandon this rule in the early 1960's in favor of a general negligence rule based upon the foreseeability of the harm. See Horton, 785 P.2d at 1089. One Utah case cited this emerging rule with approval but did not expressly adopt it. See Leininger v. Stearns-Roger Mfg. Co., 17 Utah 2d 37, 404 P.2d 33, 36 (1965). A subsequent case impliedly adopted the rule without specifically discussing it. See Williams v. Melby, 699 P.2d 723, 729 (Utah 1985). Finally, a third case struck down as unconstitutional a statute of repose that the legislature had enacted in anticipation of this rule's application in Utah. See Horton, 785 P.2d at 1096.

¶ 8 In light of this somewhat murky history, we deem it advisable to announce unambiguously that Utah follows the foreseeability rule set forth in the Restatement (Second) of Torts and followed by a majority of states. See Minton v. Krish, 34 Conn.App. 361, 642 A.2d 18, 21 (1994)

; Restatement § 385 (1965); W. Keeton et al., Prosser and Keeton on the Law of Torts § 104A, at 723-24 (5th ed.1984). We rely on this rule because it accurately reflects current tort law theory and eliminates the archaic principle of privity. See Thompson, 106 N.W.2d at 356; Hanna v. Fletcher, 231 F.2d 469, 474 (D.C.Cir.),

cert. denied sub nom Gichner Iron Works v. Hanna, 351 U.S. 989, 76 S.Ct. 1051, 100 L.Ed. 1501 (1956).

II. COMMON LAW LIABILITY FOR DANGEROUS CONDITION ON LAND/MANUFACTURE OF CHATTEL

¶ 9 The creator of an artificial condition on land may be liable to others — both upon or outside of the land — for physical harm caused by its dangerous nature. See Restatement § 385. The subsequent acceptance by the possessor of the completed condition does not abrogate this duty. See id. The Restatement further emphasizes that this duty also applies to those who manufacture chattel for others' use. See id. § 385 cmt. a (citing §§ 394-98, 403-04); Id. § 389. For our purposes in reviewing these rules of liability, it may be helpful to analogize the digging of a trench to the manufacturing of a chattel. In this analogy, the defendant's production of a completed trench — one safe for others' use — is analogous to the manufacture of a completed product. The digging of an unsafe and inherently dangerous trench may thus be analogized to the manufacture of an unfinished, inherently dangerous product. See Restatement § 385.

Section 385 of the Restatement states:

One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.

Id. at § 385.

¶ 10 Section 389 of the Restatement then underscores the nature of the duty owed by the supplier of an unfinished, inherently dangerous product. That section provides:

One who supplies directly or through a third person a chattel for another's use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use.

Id. § 389 (emphasis added).

¶ 11 In this case, Haukos apparently dug the unshored trench that collapsed and killed Tallman through unstable rock. This unshored trench was also over 5 feet in depth — a violation of both OSHA and UOSHA requirements that trenches over 5 feet deep have shoring to protect workers. See 29 C.F.R. § 1926.652(a); Utah Code Ann. § 34A-6-202(1). As noted above, Haukos's production of such an inherently dangerous trench is analogous to the production of an unfinished and inherently dangerous manufactured product. Thus, notwithstanding the fact that the "manufacture" was incomplete, a duty running from Haukos to employees of Progressive may exist under the Restatement.

¶ 12 First, Restatement § 389, as previously mentioned, acknowledges a duty where the supplier of a chattel knows or has reason to know that the chattel "is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put." Restatement § 389.

¶ 13 The facts indicate that Haukos was aware that Progressive did not undertake any precautionary measures, notwithstanding Progressive's contractual responsibility to do so. From this, a jury might infer that Progressive was unaware that the trench was deeper than 5...