Thompson v. Jess

• Decision Date: 12 March 1999
• Docket Number: No. 980127,980127
• Citation: 979 P.2d 322
• Parties: 364 Utah Adv. Rep. 64, 1999 UT 22 Trevor THOMPSON, Plaintiff and Appellant, v. Connie JESS, aka Connie Stroup, dba Motel 9/Rio Damian Motel, and Does 1 through 10, Defendants and Appellee.
• Court: Utah Supreme Court

Page 322

979 P.2d 322

364 Utah Adv. Rep. 64, 1999 UT 22

Trevor THOMPSON, Plaintiff and Appellant, v. Connie JESS, aka Connie Stroup, dba Motel 9/Rio Damian Motel, and Does 1 through 10, Defendants and Appellee.

No. 980127.

Supreme Court of Utah.

March 12, 1999.

John Paul Kennedy, Salt Lake City, and David J. Bennion, San Jose, Cal., for plaintiff.

Stephen G. Morgan, Joseph E. Minnock, Salt Lake City, for defendant.

RUSSON, Justice:

¶1 Trevor Thompson appeals from the district court's grant of summary judgment in favor of Connie Jess, owner of four motels in Duchesne, Utah. The district court ruled, as a matter of law, that Thompson could not recover from Jess for injuries sustained while erecting a steel pipe for use as a sign post at one of Jess's motels. We affirm.

BACKGROUND

¶2 On or about March 9, 1995, Jess phoned AmeriKan Sanitation to arrange for the purchase and delivery of a used steel pipe. Jess requested a hollow pipe approximately 20 feet in length with an 8-inch diameter, one that would fit vertically over an ¶3 Two employees of AmeriKan Sanitation, Dennis Jensen and Trevor Thompson, delivered the pipe. When Jensen inquired where to place the pipe, Jess told him she wanted it installed over the existing pipe stub. Jensen responded that he had been instructed only to deliver the pipe and that he was not equipped to erect it in the best manner. Jess then asked Jensen if he would install the pipe, and he agreed to do so, believing he could improvise by hoisting the pipe with the winch truck and tools he had with him.

existing pipe stub secured to the ground in front of one of her motels, which stub would support the larger pipe for use as a sign post. After agreeing upon a price, Jess requested that the pipe be delivered to her motel.

¶4 At that point, Jess's involvement in erecting the pipe ceased, and she went inside the motel. Jensen, who had hoisted similar pipes more than a hundred times before, determined on his own the manner and method of lifting and installing the pipe. For leverage, Jensen set up stabilizing poles in an A-frame formation. He then attached to the pipe a "system-seven" chain and a hook using a "trucker's hitch" or "logger's hitch"--a method of fastening pipe, which Jensen had used many times prior, whereby the weight of the pipe pulls the chain tight. Jensen connected the chain to a winch cable that was strung over the A-frame and proceeded to hoist the pipe with the winch attached to his truck. Thompson stood near the back of the truck and attempted to guide the elevated pipe onto the pipe stub protruding from the ground.

¶5 After lifting the pipe as high as this method would allow, Jensen and Thompson discovered they were approximately two inches short of being able to raise the pipe over the top of the pipe stub. They decided to lower the pipe to the ground and obtain different equipment that would lift the pipe the requisite height. In the process of lowering the pipe, however, slack developed in the chain, and the pipe slipped out, bouncing on the ground and striking Thompson in the leg. As a result of the injuries sustained from this incident, Thompson's leg was amputated below the knee. ¹

¶6 The day following the accident, Jensen returned to the site with a backhoe and erected the pipe without problem using the same chain-hitch method. Both Jensen and Thompson, as well as their employer, AmeriKan Sanitation, testified after the accident that had they known in advance they would be asked to raise and install the pipe, they would have arrived prepared with a backhoe or crane in the first instance. However, after agreeing to install the pipe for Jess, neither Jensen nor Thompson informed her that a backhoe or crane was necessary to do the job. Rather, as reflected by the record, Jensen simply told Jess that although he lacked the best equipment, he would nonetheless erect the pipe. Jensen devised his own technique for the task, and Thompson helped him in the attempt.

¶7 In April 1997, Thompson filed suit against Jess, alleging that she was negligent in the control she exercised over installation of the pipe and in failing to take or require special precautions in the performance of the job. After the parties conducted discovery, Jess moved for summary judgment, arguing that (1) she did not direct or otherwise control the manner or method of installing the pipe, and therefore owed no duty of care to Thompson or Jensen to insure they raised the pipe safely, and (2) she cannot be held vicariously liable for the negligent acts of the independent contractor she hired, regardless of whether the work involved peculiar risks or was inherently dangerous, because the injuries were suffered by an employee of that independent contractor. The district court granted Jess's motion for summary judgment, ruling that under Dayton v. Free, 46 Utah 277, 284-85, 148 P. 408, 411 (1914), Jess owed Thompson no duty of protection or warning concerning performance of the task because she did not exercise control over the manner or method utilized to install the pipe.

¶8 On appeal, Thompson contends that the district court erred in granting summary judgment. Thompson argues that by requesting ¶9 As an alternative theory of liability, Thompson posits that even if Jess was not directly negligent herself, she nonetheless should be held vicariously liable for the contractor's negligence--in this case, the negligence of Thompson's co-worker, Jensen--because Jess knew the work she requested involved a peculiar risk of physical harm to others. On this point, Thompson urges this court to adopt and apply in his favor sections 416 and 427 of the Restatement. Section 416 imposes vicarious liability on the principal employer for the contractor's negligence if the employer knows or should know that the work involves "a peculiar risk of physical harm to others." Section 427 imposes the same liability for work involving "a special danger to others ... inherent in or normal to the work."

                that he and Jensen erect the pipe when they were not obligated to do so, and by directing them to install the pipe over the existing pipe stub, Jess asserted control over the work and thereby assumed a duty of care to him under the "retained control" doctrine set forth in section 414 of the Restatement. 2  Thompson also submits that, under section 413 of the Restatement, the work Jess requested posed "a peculiar unreasonable risk of physical harm to others" and that, consequently, Jess had a duty to take appropriate safety precautions.  By not taking measures to ensure the safety of the work, asserts Thompson, Jess breached her duties of care under these provisions.  Thompson argues that Jess knew or should have known from erecting sign posts at her other motels that a crane or backhoe was required to install the pole safely
                

¶10 In response, Jess counters that the trial court did not err in granting summary judgment because (1) she did not control the manner or method in which Thompson and Jensen attempted to lift and install the pole, and therefore owed them no duty of care under the "retained control" doctrine; and (2) sections 413, 416, and 427 of the Restatement provide causes of action to "others"--meaning innocent third parties--not to employees of the independent contractor hired to perform the allegedly dangerous work.

¶11 Thus, the principal issues before us are (1) whether Jess owed Thompson a duty of care under the "retained control" doctrine, and (2) whether the "peculiar risk" and "inherently dangerous work" doctrines under sections 413, 426, and 427 of the Restatement provide causes of action in favor of employees of the contractor hired to perform the work at issue.

STANDARD OF REVIEW

¶12 Summary judgment is proper only when "there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841 (Utah 1996). We review the district court's grant of summary judgment for correctness, according no deference to the court's legal conclusions. See id.

ANALYSIS

¶13 Utah adheres to the general common law rule that "the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants." Restatement § 409; see Gleason v. Salt Lake City, 94 Utah 1, 16, 74 P.2d 1225, 1232 (1937) (noting applicability of said general rule and certain exceptions to it). This general rule recognizes that one who hires an independent contractor and does not participate in or control the manner in which the contractor's work is performed owes no duty of care concerning the safety of the manner or method of performance implemented. See W. Prosser & W. Keaton, The Law of Torts 509 (5th ed.1984). The most commonly accepted reason for this rule is that, where the principal employer does not control the means of accomplishing the contracted work, the contractor "is the proper party to be charged with the responsibility for preventing the risk [arising out of the work], and administering and distributing it." Id.

¶14 In the case at bar, Thompson does not contend that by agreeing to install the pipe over the existing pipe stub, he and Jensen

became Jess's employees. Rather, Thompson relies entirely on certain exceptions to the general rule of nonliability of an employer of an independent contractor: namely, the "retained control" doctrine, and the "peculiar risk" or "inherently dangerous work" doctrine. We address each in turn.

A. "Retained Control" Doctrine

¶15 Thompson charges that Jess should be subject to liability because, by requesting that the pipe be erected and instructing that it be installed over the existing pipe stub, she controlled and directed the work that caused his injuries. In so arguing, Thompson relies on the retained control doctrine, which, as set forth more fully below, is a narrow theory of liability applicable in the unique...