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Thompson v. Jess3/12/1999
pplying these standards to the case at hand, we conclude that Jess did not actively participate in the manner in which Thompson and Jensen attempted to lift and install the steel pipe. After agreeing to erect the pipe, Jensen, not Jess, determined the method for bringing about the desired result. Jensen decided to proceed with the equipment he had with him, and by Jensen's own design, he and Thompson set up the A-frame for use as leverage, fastened the chain to the pipe using the "trucker's hitch" or "logger's hitch" technique, and hoisted the pipe with the winch on Jensen's truck. When this method was unsuccessful, Jensen and Thompson attempted to lower the pipe to the ground and, in the course of doing so, lost control of the pipe. Thompson's injury was caused by the manner of performance, implemented by Jensen, over which Jess exercised no direction, control, or supervision. The only control Jess exerted was in directing that the pipe be installed over the pipe stub. This amounted merely to control over the desired result, which is insufficient to come within the retained control doctrine.
Particularly revealing is the fact that Jensen returned to the site with a backhoe the day after the accident and erected the pipe without incident using the same chain-hitch method. Nothing precluded Jensen from retrieving the backhoe before attempting to hoist the pipe in the first instance. The backhoe was stored only two to three miles away at the time, and nothing suggests that Jess required Jensen to install the pipe at the moment of delivery. Jensen alone chose to attempt installation of the pipe without a backhoe.
Thus, because Jess did not actively participate in or otherwise exercise affirmative control over the manner or method of performance utilized by Jensen and Thompson, she owed Thompson no duty of care under the retained control doctrine. The trial court was correct in so ruling.
B. "Peculiar Risk" or "Inherently Dangerous Work" Doctrine
Thompson also relies on sections 413, 416, and 427 of the Restatement and urges this court to adopt those sections in his favor as exceptions to the general rule that one who employs an independent contractor is not liable for injuries arising out of the contract work. These sections are similar in wording and are commonly referred to as the "peculiar risk" doctrine, see, e.g., Privette v. Superior Court, 854 P.2d 721, 725 (Cal. 1993) (en banc), or the "inherently dangerous work" exception, see, e.g., Wagner v. Continental Cas. Co., 421 N.W.2d 835, 840 (Wis. 1988).
Section 413 is premised on direct liability for a principal employer's negligence in failing to insure that special precautions are taken in the contractor's work. That section provides:
"§ 413. Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor "One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer "(a) fails to provide in the contract that the contractor shall take such precautions, or "(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions." Restatement (Second) of Torts § 413 (1965).
Sections 416 and 427 impose vicarious liability on the principal employer for the contractor's negligence, even if the employer reasonably provides for precautions in the contract work. Those sections state:
"§ 416. Work Dangerous in Absence of Specia
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