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Thompson v. Jess3/12/1999
attempt.
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.
On appeal, Thompson contends that the district court erred in granting summary judgment. Thompson argues that by requesting 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. 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.
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."
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.
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 iss
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