Parks v. Atkinson

505 P.2d 279, 19 Ariz. App. 111, 1973 Ariz. App. LEXIS 452
CourtCourt of Appeals of Arizona
DecidedJanuary 16, 1973
Docket2 CA-CIV 1162
StatusPublished
Cited by21 cases

This text of 505 P.2d 279 (Parks v. Atkinson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parks v. Atkinson, 505 P.2d 279, 19 Ariz. App. 111, 1973 Ariz. App. LEXIS 452 (Ark. Ct. App. 1973).

Opinion

HOWARD, Judge.

The plaintiff-appellant Steven Parks, an apprentice carpenter, fell from a scaffold at the site of a remodeling or reconstruction project. He brought suit against M. J. Lang Construction Company, a construction contractor working on the reconstruction project; the Roman Catholic Church of the Diocese of Tucson, the landowner; Terry Atkinson et ux., the architect; Uni-truss, Inc., which fabricated the trusses used in the scaffolding; and the Arizona Carpenters Apprenticeship Committee, an organization engaged in the training and development of apprentice carpenters. Summary judgments were granted in favor of all of the parties-defendants except Uni-truss, Inc. All of these judgments contained the express determination of finality pursuant to Rule 54(b), as amended, Ariz.R.Civ.P., 16 A.R.S. Appeal was taken from all such summary judgments. The appeal against M. J. Lang Construction Company was subsequently dismissed upon stipulation because a claim for Workmen’s Compensation was asserted. This appeal thus challenges the summary judgment entered in favor of appellees Terry Atkinson, et ux., The Roman Catholic Church of the Diocese of Tucson, and the Arizona Carpenters Apprenticeship Committee.

The facts viewed in the light most favorable to appellant are as follows. The Roman Catholic Diocese is the owner of St. Augustine’s Cathedral in Tucson, Arizona. Because of the age and condition of the structure it was decided to remodel and essentially rebuild the cathedral rather than attempt restoration. To accomplish this, the project to dismantle and rebuild the structure was granted to an independent contractor, M. J. Lang Construction Company.

After demolition was completed, construction was begun on the entire building. At the time of the injury to the plaintiff the ceiling of the cathedral was being plastered and tiled. Parks fell from a scaffolding erected so the workmen could repair the ceiling. The scaffold was designed and erected by the contractor, M. J. Lang Construction Company who had been selected by the Roman Catholic Diocese of Tucson to perform the remodeling job without competitive bidding. It was to receive in return its costs up to a certain flexible figure plus a fixed percentage of such costs as profit.

Terry Atkinson was retained as the architect by the church because of his prior extensive architectural work for the church. He was an independent contractor employed pursuant to an oral contract with the church. This contract contemplated the design and planning of the modifications and preparations of plans and specifications. It further required administration of the contract so as to determine that the construction conformed to the plans and specifications and that the finished product was in conformance with the contractual drawings and documents between the con *114 tractor and the church. Atkinson had one employee on the project. It was the duty of this employee to determine that the contractor performed the work so that the contemplated project conformed to the plans and specifications as drawn by Atkinson. The combined use of scaffolding and trusses for the ceiling work was not part of the plans and specifications, but rather was the idea of the contractor, M. J. Lang Construction Company. Atkinson’s employee intervened on two occasions in the construction work being performed by M. J. Lang Construction Company in order to insure conformance to the plans and specifications. These interventions involved disallowing the use of improper concrete and the cessation of concrete pouring due to wet footings.

The Arizona Carpenters Apprenticeship Committee is an organization of employers and employees organized pursuant to A.R.S. § 23-224, as amended. Its duties are to “. . . establish schedules for work experience training, assist in developing wage rates and working conditions for the apprentices, ascertain employer needs in the trade, specify the appropriate ratio of apprentices to journeymen, cooperate with school authorities in regard to education of apprentices in technical and theoretical subjects related to their trades and adjust apprenticeship differences.” On June 20, 1967, the Tucson Carpenters Joint Apprenticeship Committee and the plaintiff, through the Committee, entered into agreement whereby the “employer” agreed to employ the plaintiff for the purpose of enabling him to learn and acquire the trade or craft of carpentry. The agreement further provided that the plaintiff agreed to perform diligently and faithfully the work of the trade or craft of carpentry during the period of apprenticeship and comply with the training program contained in the schedule of training which was attached to the agreement. The plaintiff, at the time of the accident, was employed by M. J. Lang Construction Company, having been sent on the job by the Carpenter’s Union. We shall discuss the plaintiff’s claim against each defendant separately.

THE OWNER OF THE PREMISES

As a general rule, an owner is not liable for the negligence of an independent contractor. E. L. Jones Construction Company v. Noland, 105 Ariz. 446, 466 P.2d 740 (1970). This rule is subject to certain exceptions. One exception is that the law will not allow one who performs work that is necessarily or inherently dangerous to escape liability to persons or property negligently injured in its performance by another to whom he has contracted such work. S. A. Gerrard Company, Inc. v. Fricker, 42 Ariz. 503, 27 P.2d 678 (1933). Another exception is that one who entrusts work to an independent contractor, but who retains control of any part of the work, is subject to liability for bodily harm to others for whose safety the employer owes the duty to exercise reasonable care, which is caused by his failure to exercise his control with such reasonable care. Welker v. Kennecott Copper Company, 1 Ariz.App. 395, 403 P.2d 330 (1965).

Plaintiff claims that in addition to the above exceptions, liability should also be imposed under §§ 413, 416, 422 and 427, Restatement (Second) Torts. In Welker v. Kennecott Copper Company, supra, we held that the duties outlined in the foregoing sections of the Restatement of Torts are not owed to employees of an independent contractor. We see no reason not to adhere to our decision in Welker.

On the issue of retained control, plaintiff points out that the written agree-men between Lang and the church dated March 15, 1967, set a fee to be paid to the contractor in the sum of $650,961, exclusive of bond, including a contractor’s fee of $30,900. The contract also allowed certain items for stained glass, cast stone, an organ, finished hardware, etc. The agreement stated:

“At the owner’s option, changes to the plans may he made to reduce or increase the contract amount.” (Emphasis added.)

Plaintiff claims that this is the type of control that was found in Welker v. Kenne- *115 cott, supra, to provide a sufficient basis for landowner liability. We do not agree. Under the contract in Welker,

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Bluebook (online)
505 P.2d 279, 19 Ariz. App. 111, 1973 Ariz. App. LEXIS 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parks-v-atkinson-arizctapp-1973.