State v. Morris

555 P.2d 1216, 1976 Alas. LEXIS 412

• Court: Alaska Supreme Court
• Decided: October 29, 1976
• Docket: 2218 and 2253
• Status: Published

Opinions

OPINION

CONNOR, Justice.

On March 28, 1967, ironworker Steven G. Weber was operating a jack from a small scaffold without guardrails, suspended below the Tanana Bridge project about 40 feet above the Tanana River. His employer, Manson-Osberg Company, was constructing the bridge as contractor for the State of Alaska, and negligently failed to provide safety nets, tie lines or other safety equipment. Weber’s makeshift, nonlock-ing jack handle extension suddenly came loose, pitching Weber over the edge of the scaffold to his death below. Manson-Os-berg has paid workmen’s compensation benefits for the death.

Manson-Osberg was required under its construction contract with the state to provide all safety devices necessary on the job. The State Department of Highways had assigned an engineering inspection party to live at the project to ensure that the bridge was built to specification. The details of the work were directed and controlled by Manson-Osberg employees. The state’s engineering party limited itself to erection and assembly problems and to ensuring that the bridge was built in accordance with specifications.

Weber’s estate sued the State of Alaska for wrongful death, based on claims of both vicarious liability and liability for independent negligence. The state claimed indemnity from Manson-Osberg. Its claim was sustained by this court. Manson-Osberg Co. v. State, 552 P.2d 654 (Alaska 1976).

On a motion for summary judgment, the state was found not to be vicariously liable to Weber’s estate for the acts of Manson-Osberg, and not to be independently liable under most of the various theories advanced by plaintiff (Morris). From that judgment, Morris cross-appeals. One rather narrow issue of independent liability was preserved for trial: whether the state retained sufficient control over the project to support liability under principles of common law.¹ After trial by the court sitting without a jury, liability was found on this theory.² From this determination the state appeals, both on the ground that as a matter of law the state owed no duty to Weber, and on the ground that Weber was contributorily negligent.³

We hold that the state did not retain sufficient control to subject it to liability under principles of common law.

“It has been repeatedly held in our Courts that even though the owner reserves the right to exercise that degree of supervision and control to assure himself that the contract specifications are being met, yet he will not be held liable for the negligent methods of the contractor or subcontractor.” (Citations omitted) Caldwell v. State, 39 Misc.2d 898, 242 N.Y.S.2d 316, 318 (1963), aff'd, 22 A.D.2d 834, 253 N.Y.S.2d 825 (1964).⁴ “[N]or does the contracting owner incur a duty to the employees of an independent contractor merely by reserving the right to conduct safety inspections or to prescribe safety requirements.” Orr v. United States, 486 F.2d 270, 275 (5th Cir. 1973) (Wisdom, J.).⁵

See Fisher v. United States, 441 F.2d 1288, 1290-92 (3rd Cir. 1971); United States v. Page, 350 F.2d 28, 29-31 (10th Cir. 1965), cert. denied, 382 U.S. 979, 86 S.Ct. 552, 15 L.Ed.2d 470 (1966); 6 Seeney v. Dover Country Club Apartments, Inc., 318 A.2d 619, 621-22 (Del.Super.1974); but see Quinones v. Township of Upper Moreland, 293 F.2d 237, 241 (3rd Cir. 1961);⁷ Pasko v. Commonwealth Edison Co., 14 Ill.App.3d 481, 302 N.E.2d 642, 648-49 (1973); Restatement (Second) of Torts § 414 (1965). In the case at bar, it was found below that the “details of the work were directed and controlled by Manson-Osberg employees,” not the state inspectors;⁸ that the inspectors were only concerned with “erection and assembly problems and insuring that the bridge was built in accordance with the specifications,” and that Weber’s work at the time of his death was not “inspected or a matter of concern to the engineering party.”

We see little benefit in safety control to be gained by imposing liability in this case. Because we permit express indemnity, Manson-Osberg Co. v. State, 552 P.2d 654 (Alaska 1976), any owner would simply contract away this liability if he has sufficient bargaining power. The state cannot be distinguished from any other owner in this regard. Moreover, the state could conceivably refuse to conduct any safety inspection at all, at least where no federal funding is involved. Other forces including union pressure, enforcement of safety regulations by the Department of Labor, and workmen’s compensation insurance premium experience ratings help to encourage safety. Thus the policy of preventing future harm would not be promoted by imposing liability in a case such as this.

The dissent would impose liability on the state which is not imposed on anyone else. Our holding treats the Department of Highways the same as any other owner possessing large amounts of bargaining power and a large, formalized, internal administrative structure. The Department of Highways has no greater connection with the process of legislating safety policy than does any large business involved in public contracting. No greater duty should be placed on the Department of Highways than upon the private owner. Certainly there is no warrant for requiring the Department to insure on-the-job safety while other owners do not.

It is the duty of the executive and legislative branches of government, and not the judiciary, to allocate money, personnel and other resources to the various departments, to instruct them in their various tasks and to determine the priorities of competing governmental policies in the absence of general legal mandates. Nor do we interpret AS 18.60.030(3) and (5) as delegating any part of that duty to the Department of Highways.⁹ Moreover, we would have difficulty in creating a common law liability out of statutory language which merely requires that the Department of Labor should work in cooperation with and advise other public agencies in safety matters.

That the Department of Labor inspectors are overworked would not justify demanding a reallocation of their duties to the Department of Highways, simply because of unfavorable overall job accident satistics. The difficulties of such a reallocation should be apparent. It is conceivable that an inspector whose day is filled with concern over each ascertainable safety defect affecting workmen would do a much poorer job in inspecting the composition and construction of the work product itself — a duty which is necessary for the protection of the travelling public. While workmen are protected by Workmen’s Compensation, the public has no such comprehensive remedy. It is, therefore, far from an arbitrary or capricious decision on the part of the executive branch of government to focus more attention on the safety of the road than on the safety of the workmen, especially since the contractor under the contract has the primary duty to safeguard the latter.

We must now consider the various theories of liability advanced by Morris on cross-appeal. We have already indicated why Morris’ theories of independent liability based on retained control or assumption of responsibility to provide protection, see generally Shannon v. City of Anchorage, 429 P.2d 17 (Alaska 1967), are meritless. We further hold, that the state merely retained a right to supervise with respect to safety, but did not contractually impose a duty on itself to do so. See Baum v. United States, 427 F.2d 215, 218 (5th Cir.), cert. denied, 400 U.S. 916, 91 S.Ct. 175, 27. L.Ed.2d 155 (1970); Gowdy v. United States, 412 F.2d 525, 529 (6th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425 (1969); Grogan v. United States, 341 F.2d 39, 43 (6th Cir. 1965); Epperly v. City of Seattle, 65 Wash.2d 777, 399 P.2d 591, 596 (1965). Article 7.14 of the contract clearly provided that the duty of safeguarding the work lay with Manson-Osberg,¹⁰ and Article 7.9 provided for Manson-Osberg to indemnify the state should the state be held for any damages due to “any neglect in safeguarding the work.” See Manson-Osberg Co. v. State, 552 P.2d 654, 657 (Alaska 1976). Thus the state did not incur any duty to Weber via its contract with Manson-Osberg.

Plaintiffs argue that the state should be held vicariously liable for Manson-Osberg’s failure to provide safety equipment. They assert that Weber’s work was inherently dangerous, and that therefore the state’s duties were not delegable to an independent contractor. See Restatement (Second) of Torts §§ 416, 424,¹¹ 427 (1965). We have held in Sloan v. Atlantic Richfield Co., 552 P.2d 157 (Alaska 1976), and Morris v. City of Soldotna, 553 P.2d 474 (Alaska 1976), that the employee of an independent contractor does not fall within the class of persons protected by common law vicarious liability principles, and referred to as “others” by §§ 416,¹² 422¹³ and 427 ¹⁴ of the Restatement. There is a difference between employees of an independent contractor and unprotected members of the general public, ■ since the employees are protected under the Workmen’s Compensation Act. Imposing full liability on the innocent owner would subject him to a greater financial burden than if he had directly employed the injured workman himself, since in the latter case his liability would be limited to workmen’s compensation benefits. The imposition of greater liability on the remote party liable only vicariously is not a justifiable result at common law. See Matanuska Electric Ass’n v. Johnson, 386 P.2d 698, 702 (Alaska 1963); accord, e. g., King v. Shelby Rural Elec. Coop., 502 S.W.2d 659, 662-63 (Ky.1973), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 235 (1974); Welker v. Kennecott Copper Co., 1 Ariz.App. 395, 403 P.2d 330, 338-39 (1965) ; contra, e. g., Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508, 514 (1968); see generally Restatement (Second) of Torts, Special Note to Chapter 15, at 17-18 (Tent. Draft No. 7, 1962).

Finally, we decline to hold that the state is an “emoplyer” for purposes of civil liability per se under the Alaska “Safe Place to Work Act”, AS 18.60.075,¹⁵ and various administrative safety regulations. See, e. g., General Safety Code, ch. XIX, § 314.03 (in 1967 found in Construction Safety Code, ch. XV) (scaffolding over 8 feet high to contain a safety rail). We find that the “common and approved usage” ¹⁶ of the word “employer” does not allow the state to be classified as an employer of Weber. Plaintiff should cite State v. Marathon Oil Co., 528 P.2d 293, 297 (Alaska 1974), in support of a more liberal definition of “employer” in this context. However, Marathon was a criminal case, involving a positive violation of the safety code by Marathon Oil Company. In the case at bar, the state was very remote from the conduct constituting a violation. Furthermore, the question is whether Weber should be allowed to recover civil damages for a violation, not merely whether a violation has occurred, as is the case in criminal proceedings such as Marathon.17

In light of our holdings above, we find it unnecessary to address the issues of con-tributary negligence or the pain and suffering award. We reverse and remand for entry of judgment in favor of defendants.

REVERSED.

BOOCHEVER, C. J., with whom DIMOND, J. pro tern., joins, dissents.

BURKE, J., not participating.

1 . “Suffice to say, I found that, as a matter of law, the State was not vicariously liable for the acts of Manson-Osberg. I further found that the State was not independently liable to the estate of Weber as a matter of law on all but one rather narrow issue which was reserved for trial. That issue was whether, under the common law of Alaska, a landowner or general contractor utilizing the services of a supervising engineer or architect entitled under the contract with the general contractor to enforce safety regulations on the job could be liable to an injured employee of the contractor where the negligence of the contractor, in failing to provide a safe working place, is a proximate cause of the employee’s injury; and the supervising architect or engineer, having the contractual power to compel the contractor to provide a safe place to work, negligently fails to do so.” Decision Granting Summary Judgment to Third Party. Plaintiff Against Third Party Defendant.

2 . The trial court noted, but did not specifically rely upon, Restatement (Second) of Torts § 414 (1965), which provides:

“One 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.”

3 . An advisory jury was requested by the state on the issue of damages. Weber was found to have lived about four hours after his fall, but for at least some of that time he was unconscious or semi-conscious. The advisory jury awarded Weber’s estate $35,000 for pain and suffering, and the trial judge independently entered an award for that amount based on a formula, as well as other damages. From this award the state also appeals.

4 . In GaldweU, two state engineers were' on duty. The contract “reservfed] [the] right to inspect and control” to “make certain that the results produced conformed to the plans.” 242 N.Y.S.2d at 318. The inspectors “gave no direct orders to the contractors or their employees, nor did they attempt to exercise any control over the methods used.” Id. at 317.

5 . Liability was ultimately imposed on the government in the Orr case for the government’s failure to meet its high duty of care under Florida law owed to workers performing “hazardous jobs.” 486 F.2d at 275-76. The government failed to shut off the power in a high tension line that it owned.

6 . The trial court in Fisher v. United States, 299 F.Supp. 1 (E.D.Pa.1969), tried to distinguish Page on the ground that the Page plant actually belonged to the contractor. Id. at 17. The Fisher trial court was reversed on appeal. Fisher v. United States, 441 F.2d 1288 (3rd Cir. 1971).

7 . We note that the third circuit has not followed Quinones, if it is of general applicability. Fisher v. United States, 441 F.2d 1288 (3rd Cir. 1971). It has been said that Quinones is unique, and probably based on the peculiarities of Pennsylvania statutory law. Chesin Constr. Go. v. Epstein, 8 Ariz.App. 312, 446 P.2d 11, 16-17 (1968) ; see Quinones, supra, at 241.

8 . We do not reach the question of whether employees of an independent contractor are “others,” and hence owed any duties, under the common law as expressed in Restatement (Second) of Torts § 414 (1966).

9 . AS 18.60.930(3) and (5) provide in pertinent parts as follows:

“The Department of Labor shall Í3) work in cooperation with official and unofficial organizations and instrumentalities in the state which are interested in the promotion of safety so that possible resources can be marshalled and utilized to reduce the menace of accidental death and injury; . . .

(5) advise with the public agencies responsible for safeguarding the people against accidents, and especially with the Department of Public Works, the Department of Public Safety, the Department of Education, Department of Natural Resources, Department of Health and Social Services, and the heads or representatives of federal departments and agencies operating in the state particularly concerned with safety programs and accident prevention .

10 . Article 7.14 provided, in relevant part: “The contractor [Manson-Osberg] shall furnish such safeguards and safety devices and shall take such actions as are necessary to protect employees and the public.”

11 . To,the extent that the common law as illustrated by § 424 involves independent negligence per se, we do not reach the issue of whether Weber was an “other,” since we find against such liability below on other grounds.

12 . Restatement (Second) of Torts § 416 (1965) provides:

“One who employs an independent contractor to do that which the employer should recognize as likely to produce, during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them for the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.”

13 .Restatement (Second) of Torts § 422 (1965) provides:

“A possessor of land who entrusts to an independent contractor construction, repair, or other work on ,the land, or on a building or other structure upon it, is subject to the same liability as. though he had retained the work in his own hands to others on or outside of the land for physical harm caused to them by the unsafe condition of the structure

(a) while the possessor has retained possession of land during the progress of the work, or

(b) after he has resumed possession of the land upon its completion.”

14 . Restatement (Second) of Torts § 427 (1966) provides:

“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused ,to others by the contractor’s failure to take reasonable precautions against such danger.” (Emphasis added)

15 . AS 18.60.075 read in 1967, in relevant part:

“Safe employment. An employer shall (1) furnish employment which is reasonably safe; (2) furnish and use safety devices and safeguards; (3) adopt and use methods and processes reasonably adequate to render the employment or place of employment reasonably safe; and (4) do every other thing reasonably necessary to protect the life, health, safety and welfare of employees.”

16 . See AS 01.10.040; see also AS 18.60.105 for the circular statutory definition of “employer” in terms of an “employee.”

17 . We do not consider any questions of state liability based on the conduct of Burton Doucette or the Department of Labor. Judge Singleton ruled that the enforcement of statutes or safety regulations by Department of Labor safety inspectors, as with police officers, is a discretionary function as to .the decision to make such inspections. Hence, the failure to make an inspection cannot be the subject of tort liability. AS 09.50.250 (1). Cf. Adams v. State, 555 P.2d 235 Opin. No. 1318 (Alaska 1976) and State v. Jennings, 555 P.2d 248 Opin. No. 1319 (Alaska 1976). Appellees did not brief this issue. Wernberg v. Matanuslca Elec. Ass’n, 494 P.2d 790, 794 (Alaska 1972) ; Lewis v. State, 469 P.2d 689, 691-92 n. 2 (Alaska 1970).