Irvin Hamm, Appellant, vs. Lloyd Lund, Respondent, Darrow Lundeen, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1581

 

Irvin Hamm,

Appellant,

 

vs.

 

Lloyd Lund,

Respondent,

 

Darrow Lundeen,

Respondent.

 

Filed June 22, 2004

Affirmed

Kalitowski, Judge

 

Red Lake County District Court

File No. C0-00-167

 

Delray Sparby, Ihle & Sparby, P.A., 312 Main Avenue North, P.O. Box 574, Thief River Falls, MN 56701; and

 

James P. Carey, Sieben, Grose, Von Holtum & Carey, Ltd., 900 Midwest Plaza East, 800 Marquette Avenue, Minneapolis, MN 55402 (for appellant)

 

Lloyd Lund, 108 Elm Avenue, Thief River Falls, MN 56701 (pro se respondent)

 

Paul Wocken, Willenbring, Dahl, Wocken & Zimmermann, PLLC, Red River at Main, P.O. Box 417, Cold Spring, MN 56320 (for respondent Darrow Lundeen)

 

            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            This case is a personal injury action arising from an incident whereby appellant Irvin Hamm was electrocuted when a crane operated by respondent Lloyd Lund came in contact with a power line.  In this appeal, appellant challenges the district court's grant of a directed verdict in favor of respondent Darrow Lundeen.  We affirm.   

D E C I S I O N

            "On appeal from a directed verdict, we make an independent determination of whether the evidence was sufficient to present a fact question to the jury.  In making such a determination, we review the evidence in a light most favorable to the nonmoving party."  Boone v. Martinez, 567 N.W.2d 508, 510 (Minn. 1997) (citation omitted). 

            Appellant argues that there is sufficient evidence for a jury to determine that Lundeen controlled the work of independent contractor Lund such that he is either vicariously liable for Lund's negligence or directly liable.  But appellate courts have been reluctant to apply either direct or vicarious liability to a company hiring an independent contractor for injuries to that contractor's employees.  Sutherland v. Barton, 570 N.W.2d 1, 5 (Minn. 1997).  However, a hiring company may be directly liable for injuries sustained by an independent contractor's employee if it retains control over the "operative detail" of the contractor's work.  Id. at 5.  The hiring company must retain a right of supervision such that the contractor is not entirely free to perform the work in his own way; it is insufficient that the company has a general right to order the work stopped or resumed, to inspect its progress, to make suggestions or recommendations that need not necessarily be followed, or prescribe alterations or deviations.  Id. at 5-6. 

In addition, while a hiring company may be vicariously liable for the negligence of an independent contractor "when the company retains detailed control over the specific project on which the employees are working," courts are even more reluctant to impose vicarious liability.  Id. at 6 (citation omitted).  In Sutherland, the court concluded that imposing vicarious liability for the employee's electrical injuries would be especially inappropriate when the manufacturing plant hired the independent contractor specifically because it had expertise in electrical work.  Id. at 7; see Conover v. Northern States Power Co., 313 N.W.2d 397, 405 (Minn. 1981) (stating that "one who hires an independent contractor with employees specialized to do the hazardous work should not be penalized by being held vicariously liable for an injury to those employees").

            Here, appellant claims that Lundeen retained sufficient control over Lund and appellant's work to impose direct or vicarious liability.  We disagree.  On appeal, appellant does not dispute that Lund was an independent contractor, but contends that Lundeen retained complete control over the church steeple project, including Lund's operation of the crane.  Appellant notes that Lundeen selected the steeple, obtained church board permission to erect it, determined its placement, prepared the roof, gathered workers, approved the hiring of Lund, and actively participated in erecting the steeple on the day in question.  But none of these actions are relevant to determine whether and to what degree Lundeen exercised control over Lund or appellant's work, which is the critical inquiry to determine liability.

            In Sutherland, the Minnesota Supreme Court determined that the hiring company was not directly or vicariously liable where it concluded that the electrical project could be completed safely with the power still on, but the contractor determined how to perform specific tasks and how to protect the work area, and the contractor was the specialist in electrical work.  Sutherland, 570 N.W.2d at 6-7.  Similarly, in the present case, Lund determined how to perform the specific tasks assigned to him.  Lund testified at trial that he controlled the positioning and operation of the crane, and in fact, rejected Lundeen's suggestion of where to position it.  And Lund chose to move the crane, which ultimately resulted in appellant's injuries, without direction from Lundeen.  Ultimately, Lund was free to perform the work in his own way. 

            Further, Lund was the expert in crane operation.  While appellant claims that Lund was hired for the use of his crane and not because of his expertise "operating near charged electrical lines," the record clearly indicates that Lund was hired for his expertise as a crane operator, which included experience operating a crane near power lines.  Moreover, it is undisputed that Lund hired appellant without the knowledge or direction of Lundeen.  And both appellant and Lund testified that Lundeen never directed or instructed them. 

            In an earlier decision affirming the district court's denial of Lundeen's motion for summary judgment, this court concluded that a fact question existed regarding the amount of control Lundeen exercised over the steeple project.   Hamm v. Oak Park Lutheran Church, No. CX-02-354, 2002 WL 31171760, * 6 (Minn. App. Oct. 1, 2002).  Specifically, this court stated that a dispute existed regarding (1) whether Lundeen was inside the steeple bolting it together or whether he was outside directing the crane; (2) whether Lundeen hired Lund, told him where to be, and at what time he expected him to arrive; and (3) whether Lundeen spoke with Lund about the power lines before Lund began to work on the crane.  Id. at *7.

            Subsequently, the district court granted Lundeen's motion for a directed verdict, determining that it was undisputed that (1) Lundeen was inside the steeple bolting it together at the time appellant sustained his injuries; (2) Lundeen agreed to pay $300 to Lund, but all other arrangements were made by another individual; and (3) Lundeen warned Lund and others about the power lines.  The record supports these findings. 

            Thus, we conclude that the district court properly applied Sutherland and granted a directed verdict because Lundeen did not retain sufficient control over Lund or appellant's work for direct or vicarious liability to attach. 

            Affirmed.

 

 

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.