 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Thompson v. Jess3/12/1999
ue.
STANDARD OF REVIEW
Summary judgment is proper only when "there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Doit, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841 (Utah 1996). We review the district court's grant of summary judgment for correctness, according no deference to the court's legal Conclusions. See id.
ANALYSIS
Utah adheres to the general common law rule 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." Restatement § 409; see Gleason v. Salt Lake City, 94 Utah 1, 16, 74 P.2d 1225, 1232 (1937) (noting applicability of said general rule and certain exceptions to it). This general rule recognizes that one who hires an independent contractor and does not participate in or control the manner in which the contractor's work is performed owes no duty of care concerning the safety of the manner or method of performance implemented. See W. Prosser & W. Keaton, The Law of Torts 509 (5th ed. 1984). The most commonly accepted reason for this rule is that, where the principal employer does not control the means of accomplishing the contracted work, the contractor "is the proper party to be charged with the responsibility for preventing the risk [arising out of the work], and administering and distributing it." Id.
In the case at bar, Thompson does not contend that by agreeing to install the pipe over the existing pipe stub, he and Jensen became Jess's employees. Rather, Thompson relies entirely on certain exceptions to the general rule of non-liability of an employer of an independent contractor: namely, the "retained control" doctrine, and the "peculiar risk" or "inherently dangerous work" doctrine. We address each in turn.
A. "Retained Control" Doctrine
Thompson charges that Jess should be subject to liability because, by requesting that the pipe be erected and instructing that it be installed over the existing pipe stub, she controlled and directed the work that caused his injuries. In so arguing, Thompson relies on the retained control doctrine, which, as set forth more fully below, is a narrow theory of liability applicable in the unique circumstance where an employer of an independent contractor exercises enough control over the contracted work to give rise to a limited duty of care, but not enough to become an employer or a master of those over whom the control is asserted. The duty in such situations is one of reasonable care under the circumstances and is confined in scope to the control asserted.
In 1965, the American Law Institute promulgated the retained control doctrine as section 414 of the Restatement, which states:
"§ 414. Negligence in Exercising Control Retained by Employer "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." Restatement (Second) of Torts § 414 (1965).
This doctrine has not been adopted formally in Utah, although similar principles were discussed in this court's early decision of Dayton v. Free, 148 P. 408, 411-12 (Utah 1914).
In Dayton, this court addressed whether a company that employed an independent contractor was liable for injuries sustained by an employee of that contractor during the blasting of an underground tunnel. See id. at 411-12. Citing a number of authorities from other states, the injure
Page 1 2 3 4 5 6 7 8 9 Utah Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|