Van Fossen v. Midamerican Energy Co.

• Decision Date: 13 November 2009
• Docket Number: No. 06-1691.,06-1691.
• Citation: 777 N.W.2d 689
• Parties: Roger VAN FOSSEN, Individually, and as Personal Representative of the Estate of Ann Van Fossen, Deceased, Appellant, v. MIDAMERICAN ENERGY COMPANY and Interstate Power and Light Company, Appellees.
• Court: Iowa Supreme Court

777 N.W.2d 689

Roger VAN FOSSEN, Individually, and as Personal Representative of the Estate of Ann Van Fossen, Deceased, Appellant, v. MIDAMERICAN ENERGY COMPANY and Interstate Power and Light Company, Appellees.

No. 06-1691.

Supreme Court of Iowa.

November 13, 2009.

Michael P. Jacobs of Rawlings, Nieland, Probasco, Killinger, Elwanger, Jacobs, Mohrhauser, Nelson & Early, L.L.P., Sioux City, and John Herrick and Benjamin D. Cunningham of Motley Rice, Mt. Pleasant, South Carolina, for appellant.

William R. Hughes, Jr., of Stuart, Tinley, Peters, Thorn, Hughes, Faust & Madsen, Council Bluffs, and Jason Kennedy and Adam Jagadich of Segal, McCambridge, Singer & Mahoney, Chicago, Illinois, for appellee MidAmerican Energy Company.

Leonard T. Strand and Kerry A. Finley of Simmons Perrine PLC, Cedar Rapids, for appellee Interstate Power and Light Company.

HECHT, Justice.

This case presents the question of whether owners of a power plant have tort liability for the wrongful death of the spouse of an employee of an independent contractor. In this suit against the plant owners, the plaintiff claims he was exposed to asbestos dust while performing construction and maintenance work at the plant over a period of several years. The plaintiff alleges he routinely encountered the carcinogen at the plant in the course of his employment and further asserts his late wife contracted mesothelioma as a consequence of her regular exposure to asbestos dust while laundering his work clothes. The district court granted the defendants' motions for summary judgment, concluding the owners owed no duty to warn the spouse of an independent contractor of the health hazards posed by asbestos. On further review of the decision of the court of appeals affirming summary judgment in favor of the owners, we conclude the owners of the power plant owed no legal duty to give such warnings to the spouse of an independent contractor's employee.

I. Factual and Procedural Background.

Viewing the summary judgment record in the light most favorable to the plaintiff, a reasonable person could find the following facts. In 1973, Roger Van Fossen (Van Fossen) began working on a construction project at the Port Neal power plant near Sioux City, Iowa. At that time, the plant consisted of two functional power generating units, and construction of a third unit, owned by the corporate predecessors of MidAmerican Energy Company (MidAmerican), Iowa Power and Light (IPL), and one other power company, was underway.¹ A year later, MidAmerican, IPL, and ten other power companies and municipal utilities formed an agreement to build a fourth power generating unit which was not completed until sometime in 1980.²

MidAmerican, as the agent of the other owners, engaged Ebasco Services (Ebasco) as the general contractor for the construction of Units 3 and 4. The construction contracts gave Ebasco full control over its employees and the construction of both units.³ Van Fossen was employed by Ebasco as an iron-rigger on the construction projects from 1973 to 1981. When the construction of Units 3 and 4 was completed, Van Fossen continued working at the Port Neal facility. He was hired by W.A. Klinger Co. (Klinger), a company that contracted to provide maintenance services on all four of the Port Neal power units.

During his employment with Ebasco in the construction of Units 3 and 4, and while performing maintenance work on all four of the units as an employee of Klinger until 1997, Van Fossen and his clothing were exposed to various asbestos-containing products. He wore his work clothes to his home where they were regularly laundered by his wife, Ann Van Fossen (Ann).⁴

After Van Fossen's retirement in 1997, Ann was diagnosed with malignant peritoneal mesothelioma, a cancer commonly associated with exposure to asbestos. After Ann's death, Van Fossen filed this wrongful death lawsuit against several defendants, including MidAmerican and IPL, asserting the defendants negligently failed to warn Ann of the health risks associated with exposure to asbestos. MidAmerican and IPL filed motions for summary judgment claiming they have no liability for Ann's death because they owed no duty to warn family members of employees of independent contractors of the risks associated with exposure to asbestos. After a hearing, the district court granted the motions, concluding MidAmerican and IPL owed no legal duty to Ann, the spouse of an independent contractor's employee, who was exposed to asbestos at a location remote from the plant premises.

We transferred Van Fossen's appeal to the court of appeals. The court of appeals affirmed the district court's summary judgment ruling, and we granted Van Fossen's application for further review.

II. Scope of Review.

We review a trial court's grant of summary judgment for correction of errors at law. Faeth v. State Farm Mut. Auto. Ins. Co., 707 N.W.2d 328, 331 (Iowa 2005). On motion for summary judgment, the court must: (1) view the facts in the light most favorable to the nonmoving party, and (2) consider on behalf of the nonmoving party every legitimate inference reasonably deduced from the record. Estate of Harris v. Papa John's Pizza, 679 N.W.2d 673, 677 (Iowa 2004). Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Iowa R. Civ. P. 1.981(3). The existence of a legal duty is a question of law for the court to decide. Estate of Pearson ex rel. Latta v. Interstate Power & Light Co., 700 N.W.2d 333, 341 (Iowa 2005).

III. Discussion.

A. Duty Theories Asserted by Van Fossen.

It must be noted at the outset that Ann never visited the power plant. Accordingly, Van Fossen's claim on appeal that MidAmerican and IPL owed Ann a duty is not based on the well-established special duty of possessors of real estate to protect non-trespassers against dangerous conditions on real estate. See Restatement (Second) of Torts § 343, at 215-16 (1965). Instead, Van Fossen claims MidAmerican and IPL are liable as the employer of an independent contractor. Although the general rule is 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," id. § 409, at 370, Van Fossen contends several exceptions to this rule apply in this case. Specifically, Van Fossen relies on exceptions found in the second Restatement sections 413, 416, and 427 for work likely to create a peculiar unreasonable risk of physical harm unless special precautions are taken and for work involving a special danger inherent in the work. In addition, Van Fossen contends MidAmerican and IPL owed Ann a general common-law duty to warn of the risks associated with exposure to asbestos.

We will discuss each of Van Fossen's duty theories in turn.

B. Duty to Provide for Taking Precautions Under Restatement (Second) Sections 413 and 416.

Under sections 413 and 416 of the Restatement (Second) of Torts, one who employs an independent contractor may be liable if the work performed by the contractor involves a peculiar unreasonable risk of harm to others. Under section 413, the employer has a duty to either (1) contractually allocate to the contractor the burden of taking precautions against a peculiar unreasonable risk of physical harm to others, or (2) exercise reasonable care to provide in some manner for such precautions if the employer should recognize that the work is likely to create such a risk. Restatement (Second) § 413, at 384-85; Kragel v. Wal-Mart Stores, Inc., 537 N.W.2d 699, 703 (Iowa 1995) (stating section 413 addresses liability of the employer because of the employer's actual fault). Under section 416, the employer may be held vicariously liable for the negligence of the contractor performing the work even though the employer has contractually or otherwise provided for precautions against the peculiar risk. Restatement (Second) § 416, at 395; Kragel, 537 N.W.2d at 703 (stating employer's liability under section 416 is vicarious).

We have previously considered whether work performed by contractors involved risks so "peculiar" as to justify liability under these sections of the Restatement (Second). In two early cases, both involving roofing work, we found the exceptions applied and that a general contractor owed a duty to an employee of an independent contractor. Trushcheff v. Abell-Howe Co., 239 N.W.2d 116 (Iowa 1976); Giarratano v. Weitz Co., 259 Iowa 1292, 147 N.W.2d 824 (1967). In Giarratano, without discussing why the employee's work atop the roof eighty feet above the ground involved a peculiar risk, we summarily concluded substantial evidence of a peculiar risk appeared in the record supporting the existence of a duty on the part of the general contractor under sections 413 and 416.⁵ Giarratano, 259 Iowa at 1308, 147 N.W.2d at 834. Similarly, in Trushcheff, in summary fashion and without conducting an analysis of the features of Trushcheff's roofing work that created a peculiar risk, we observed "it cannot be plausibly argued [the general contractor] owed Trushcheff no duty of care at the time of the accident" under sections 413 and 416. Trushcheff, 239 N.W.2d at 126.

We next addressed the concept of peculiar risk in Porter v. Iowa Power & Light Co., 217 N.W.2d 221 (Iowa 1974). The City of Altoona contracted with a paving contractor for the construction of a paving project. Porter, 217 N.W.2d at 226. Porter, who was employed by the contractor, was electrocuted when a co-employee operating a crane brought it in contact with Iowa Power's electric line. Id. Porter's administrator sued the city, the city's engineer, and the power company alleging the defendants negligently failed to provide a safe workplace and to warn of the danger from the electrical line. Id. at 231. Affirming the district court's refusal to submit to the jury specifications of negligence based on sections 413...