Martinez v. Jacobsen Const.

Martinez v. Jacobsen Const.

IN THE UTAH COURT OF APPEALS
 

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Russell Martinez,

Plaintiff and Appellant,

v.

Jacobsen Construction Company, Inc., a Utah corporation; and John Does 1 through 3,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040004-CA
 

F I L E D
(March 17, 2005)
 

2005 UT App 136

 

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Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: William J. Hansen, Karra J. Porter, and John E. Hansen, Salt Lake City, for Appellant

Robert L. Stevens, Salt Lake City, for Appellees

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Before Judges Bench, Greenwood, and Orme.

GREENWOOD, Judge:

    Plaintiff Russell Martinez appeals the trial court's grant of summary judgment in favor of Defendant Jacobsen Construction Company, Inc. "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.'" Thompson v. Jess, 1999 UT 22,¶12, 979 P.2d 322 (citation omitted).

    Plaintiff, a steelworker employed by a steel erection subcontractor, argues that the trial court erred in granting summary judgment in favor of Defendant because material issues of fact exist as to whether Defendant, as the general contractor for the construction project, retained and exercised a right of control over worker safety sufficient to create a limited duty under the "retained control" doctrine. "[T]he issue of 'whether a "duty" exists is a matter of law' which we review for correctness." Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405 (Utah 1998) (citation omitted).

    "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.'" Thompson, 1999 UT 22 at ¶13 (quoting Restatement (Second) of Torts § 409 (1965)). However, a narrow exception to this rule, the "retained control" doctrine, applies when "an employer of an independent contractor exercises enough control over the contracted work to give rise to a limited duty of care . . . confined in scope to the control asserted." Id. at ¶15.

    We recently analyzed the "retained control" doctrine, stating that "under Thompson, retained control requires active participation in the method or operative detail of the injury-causing activity in order to impose liability." Smith v. Hales & Warner Constr., Inc., 2005 UT App 38,¶10, 518 Utah Adv. Rep. 17 (emphasis added).

    Plaintiff first asserts that Defendant retained control via the contract between the owner of the construction project and Defendant in which Defendant agreed to be solely responsible for "all construction methods and for providing a safe work environment on the job site." In support of this proposition, Plaintiff cites language from Thompson:

The term "retained control" may have a more syntactically correct application to sophisticated parties who, by contract, stipulate which party will control the manner or method of work or the safety measures to be taken--such as in contracts between general contractors and subcontractors involved in construction projects. . . . The issue, however, of whether a duty of care may be imposed solely as a result of such a contractual reservation is not before us.

1999 UT 22 at ¶26 n.3.

    Plaintiff's reliance on this language is misplaced. In this case, Defendant subcontracted the steel work on the construction project to Masco, Inc., which subcontracted portions to Steel Deck Erectors, which, in turn, brought in Plaintiff's employer, Truco under a subcontract. The contract that Plaintiff refers to is only between Defendant and the owner of the project. Thus, it is doubtful that the Thompson footnote applies to this case. Instead, this case is similar to Smith, in which we found further support for refusing to apply the "retained control" doctrine to hold the owner liable to the deceased employee's relatives because "the actual supervisor of Decedent . . . had a subcontract with [the rough carpentry subcontractor], which in turn was a subcontractor with the general contractor." 2005 UT App 38 at ¶11.

    Furthermore, it is undisputed that in all its subcontracts, Defendant required its subcontractors to be responsible for job site safety. The subcontract form was attached to and incorporated into the contract between Defendant and the project owner. Therefore, even if Defendant did have responsibility for safety vis-a-vis the owner, that responsibility was passed on to the various subcontractors.

    Plaintiff maintains, however, that there is more than a bare contractual reservation on which to base a duty in this case. Particularly, Plaintiff points to Defendant's directives to Steel Deck Erectors and Truco regarding fall protection, Defendant's safety inspections and checklists, Defendant's project manager's and superintendent's acknowledgment of responsibility to look for and correct dangerous working conditions, Defendant's monitoring of wind and weather, and Defendant's imposition of overtime. Though these factors, taken together, suggest a general supervisory role by Defendant, they do not rise to the level of control over the "method or operative detail of the injury-causing activity," id. at ¶10, necessary to impose liability. Indeed, it is undisputed that Defendant did not train Plaintiff and other steel workers on how to do their jobs. In particular, Defendant did not supervise or train Plaintiff and other steel workers on how to install the tie-off system. Rather, Defendant simply required its subcontractors to perform their work safely and in compliance with the Occupational Safety and Health Administration requirements. "This amounted merely to control over the desired result, which is insufficient to come within the retained control doctrine." Thompson, 1999 UT 22 at ¶24.

    In sum, because Defendant did not actively participate in the steel work itself, or the safety system for the steel work,
Defendant's participation is insufficient to create a duty under the "retained control" doctrine under Utah law.(1)

    Accordingly, the judgment of the trial court is affirmed.

______________________________

Pamela T. Greenwood, Judge

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I CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

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I CONCUR IN THE RESULT:

______________________________

Gregory K. Orme, Judge

1. Plaintiff also argues that if Defendant owes Plaintiff a duty of care, summary judgment was improper because material issues of fact exist as to whether Defendant breached this duty and whether such breach is a proximate cause of Plaintiff's injuries. However, because we determine that no duty of care exists in this case, we do not reach these issues.