Farris v. General Growth Development Corp.

354 N.W.2d 251, 1984 Iowa App. LEXIS 1513
CourtCourt of Appeals of Iowa
DecidedJune 26, 1984
Docket2-69437
StatusPublished
Cited by18 cases

This text of 354 N.W.2d 251 (Farris v. General Growth Development Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farris v. General Growth Development Corp., 354 N.W.2d 251, 1984 Iowa App. LEXIS 1513 (iowactapp 1984).

Opinions

OXBERGER, Chief Judge.

The defendant appeals from judgment upon verdicts for the plaintiffs in this tort case arising from a construction accident. The defendant’s numerous issues revolve around its contention that it, as an employer of the independent contractor, owed only [253]*253a very limited duty of care to the employee of an independent contractor. The defendant contends the trial court’s instructions misstated in several ways the law relating to the duty owed by an employer to the employee of an independent contractor; it also contends the evidence was not sufficient to permit the jury to find that a duty existed or had been breached in this case. The plaintiffs respond that their evidence of substantial and detailed supervision of the work site by the defendant’s employees removes this case from general rules about the limited duties of an employer toward employees of an independent contractor.

The plaintiffs have cross-appealed from the judgment, challenging the trial court’s refusal to award statutory interest on that part of the award to which a workers’ compensation insurer possessed a right of subrogation. We affirm on both appeals.

Dennis Farris was a carpenter employed by Gibson Enterprises, a general contracting firm. Gibson Enterprises had contracted with the defendant General Growth Development Corporation (GGDC) to build an apartment building. The apartment building was to be managed by GGDC and was situated on land owned by a related company, General Growth Properties.

During the construction of this apartment building, Dennis Farris was severely injured when he fell from the third floor deck before the walls had been erected. No guardrails, scaffolds, or other safety barriers were in place at the time of Far-ris’s fall.

Farris received slightly over $100,000 in workmen’s compensation payments from Gibson’s insurer. In addition, he filed the present lawsuit against GGDC. (His wife and children were also plaintiffs, seeking damages for loss of consortium). Gibson’s insurer filed a lien against any recovery had by Dennis Farris to the extent of the workmen’s compensation benefits paid. A jury awarded Dennis Farris damages of $240,000 from GGDC; the jury also awarded Farris’s wife $15,000 and his children $40,000.

The general rule is that an employer of an independent contractor is not vicariously liable for injuries arising out of the contractor’s negligence. Lunde v. Winnebago Industries, Inc., 299 N.W.2d 473, 475 (Iowa 1981). The explanation most commonly given for that rule is that since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor’s own enterprise. Restatement (Second) of Torts § 409 comment b (1965). There are, however, exceptions to the rule. The issue here is whether there is an exception that applies in this case and whether Farris is within the class of persons who fall w'ithin the exception.

This is an action at law and our review is on assigned errors. Iowa R.App.P. 4.

I. Instruction No. 11

Appellant, General Growth Development Corporation (GGDC), first contends that the trial court erred in instructing the jury that GGDC owed Farris the duty of providing him a safe place to work. The thrust of this contention is that a party must be in possession of the premises before any responsibility for providing a safe place for others can attach. Appellant argues that GGDC was not in possession of the premises, and that therefore this exception is inapplicable. We do not agree.

The exceptions to the independent contractor rule are contained in Restatement (Second) of Torts sections 410 through 429. Section 414 provides that:

[o]ne who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Comment (b) to section 414 provides in pertinent part that:

[t]he rule stated in this Section is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but [254]*254himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others...

The duty imposed upon GGDC, as general contractor, to exercise reasonable care to prevent injuries on the job site may be premised upon its possession and control of the premises.1 We are of the opinion that GGDC was in possession of the premises. Restatement (Second) of Torts section 422 provides that normally an owner of property is liable for injuries caused to others by the unsafe condition of the property as long as he has possession of the land. However, comment (c) provides that an owner is not liable for injuries occurring while the land is turned over to a contractor since “[pjossession usually is surrendered fully in the case of construction." The logical converse of this provision is that the general contractor acquires possession in such circumstances. This conclusion is further buttressed by Lunde, wherein the court held that an owner of property surrenders possession unless his involvement in overseeing the construction is “substantial.” Id. at 479.

Normally when a general contractor has a supervisor on the site, it will be able to exercise control over the premises. Clearly this was the case here. GGDC’s supervisor, Dick Cable, was in charge of coordinating all subcontractors and inspecting the work as it was completed on this job. Cable had a trailer on the job site and was present on the construction site daily. Far-ris’s testimony indicated that Cable, on several occasions, directed Gibson’s workers on what to do and how to do it. Farris stated that Cable would show Gibson’s workers how to get ice off the rafters. Another worker, Owens, stated that he voiced his complaints to Cable about the safety of the job and the fact that there were no railings on the open-sided deck. Wilkins, a carpenter on the job site, testified that on two occasions Cable directly instructed him. Another carpenter, Scoles, related that on one occasion Cable gave him direct work instructions. He further testified that he followed those instructions because he considered Cable to be the boss on this job. John Brandt, a carpenter for Gibson, testified that Cable gave him and other Gibson carpenters direct instructions on what to do, and also Cable would get involved because “[h]e had the final word.”

Since GGDC was in possession of, and had control over the premises, the trial court did not err by instructing the jury that GGDC owed Farris a duty to provide a reasonably safe place to work.

II. Instruction No. 10

GGDC asserts that the trial court erred by instructing the jury that GGDC had assumed safety responsibilities for Farris by contract and such assumed responsibility was nondelegable. The trial court instructed on such duties as a matter of law.

Iowa Uniform Civil Jury Instruction No. 25.8 states in part:

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Farris v. General Growth Development Corp.
354 N.W.2d 251 (Court of Appeals of Iowa, 1984)

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Bluebook (online)
354 N.W.2d 251, 1984 Iowa App. LEXIS 1513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farris-v-general-growth-development-corp-iowactapp-1984.