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Thompson v. Jess3/12/1999
d employee claimed that because the company, by contract, reserved to itself certain rights pertaining to overall management of the contract work, "the relation between the company and the contractors was not that of independent, but nonindependent, contractors." Id. at 411. As a result, argued the injured employee, he should be allowed to recover against the company. The court disagreed, stating:
"[The cited authorities] relate to instances and cases where the proprietor or employer reserved or exercised the right to superintend, direct or control the work, not only with respect to results, but also with reference to methods of procedure or means by which the result was to be accomplished, where the will and discretion of the contractor as to the time and manner of doing the work or the means and methods of accomplishing the results were subordinate and subject to that of the owner or proprietor. We do not find anything in the contract or the evidence [identified by the plaintiff] which brings this case within such a rule." Id.
The court concluded that the injury had been caused by the manner in which the work was performed rather than by the nature of the work itself. See id. at 412. Because the company exercised no control over the contractor's manner of work, it owed the plaintiff no duty to warn or guard him "against dangers incident to or created by the prosecution of the work, and certainly not to guard or protect him against the negligence of those who had employed him or with whom he labored." Id.
This court has not had opportunity to determine the precedential value of Dayton with respect to the retained control doctrine. Several federal courts applying Utah law, however, have been called upon to do so. Those courts uniformly have determined that under Dayton, a principal employer is not subject to liability for injuries arising out of its contractor's work unless the employer "actively participates" in the performance of the work. For instance, in Simon v. Deery Oil, 699 F. Supp. 257, 258 (D. Utah 1988), the court cited Dayton for the proposition that a principal employer "retaining an independent contractor to render services has no duty to warn or train employees of the contractor, nor must the principal protect the contractor's employees from the contractor's own negligence, unless the principal has `actively participated' in the project." See also Sewell v. Phillips Petroleum Co., 606 F.2d 274, 276 (10th Cir. 1979), cert. denied, 444 U.S. 1080 (1980); Texaco, Inc. v. Pruitt, 396 F.2d 237, 240 (10th Cir. 1968); Erwin v. Kern River Gas Transmission Co., 1997 Tex. App. LEXIS 6685, *8 (addressing Utah law on issue). We believe the standard relied upon in these cases is correct, and we formally adopt the same. Elaboration on the contours of the standard is needed, however.
Under the "active participation" standard, a principal employer is subject to liability for injuries arising out of its independent contractor's work if the employer is actively involved in, or asserts control over, the manner of performance of the contracted work. See Conklin v. Cohen, 287 So. 2d 56, 60 (Fla. 1973) (holding that under "active participation" standard, principal employer must directly influence manner in which work is performed; no duty arises from "passive nonparticipation"). Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. See, e.g., Lewis v. N.J. Riebe Enterprises, Inc., 825 P.2d 5, 7-8 (Ariz. 1992) (imposing liability where subcontractor's employee was injured as result of new, less saf
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