LUNDE v. WINNEBAGO INDUSTRIES, INC.

LARSON, Justice.

Marc Lunde was an employee of a contractor retained by the appellee Winnebago Industries, Inc. to construct a building on its premises. During the construction process Lunde was injured, and he brought an action against several parties, including Winnebago.1 A jury verdict in favor of Lunde was set aside by the trial court and a judgment notwithstanding the verdict was entered on behalf of Winnebago. Lunde's appeal and Winnebago's cross-appeal followed. We affirm the trial court on Lunde's appeal, thus rendering the cross-appeal moot.

Lunde's employer, Henningsen Steel Products Company, Inc., had contracted with Winnebago to construct a steel frame building known as the "plastics plant," on Winnebago's premises. Pursuant to the contract, Henningsen was required to initiate, maintain, and supervise all safety procedures in connection with the project, and to comply with all applicable safety laws, rules and regulations.

Other than its expanse, the plastics plant possessed no unusual features. The building roughly measured 180 feet by 360 feet. It was approximately twenty-eight feet high at the peak and twenty-one to twenty-four feet at the outer walls. An addition was erected and joined to the main building. The roof, having a pitch of one inch fall per twelve inches of horizontal run at the point of Lunde's fall, consisted of thin, corrugated sheet metal panels laid in a grid pattern, which were attached with metal screws to steel purlins. Prior to Lunde's accident, the roof panels had been laid so that there was an overhang or cantilever of the thin metal, extending over the outside wall of the building one to one-and-a-half feet. Lacking vertical support, this overhang could not support a man's weight.

On the day of his injury, Lunde was attaching the roof panels to the purlins, continuing up and down the slope of the roof, as part of a two-man operation. While another Henningsen employee drilled holes into the purlins, Lunde followed, screwing down the panels with an impact wrench. As the two workers approached the edge of the building in attaching the first line of roof panels, the other employee moved on to an adjacent purlin and began drilling. Lunde, apparently unaware of his location, continued further down the slope of the roof onto the unsupported portion of the last panel and fell approximately twenty-five feet to a blacktop surface.

Lunde's suit against Winnebago alleged negligence of Henningsen is failing to employ safety netting, lifelines, scaffolding, and other precautions. He contended that Winnebago, as owner of the building, was liable for his injuries, despite his status as an employee of an independent contractor based, in the alternative, upon (1) the fact he was engaged in work "likely to create... a peculiar risk of physical harm," under Restatement (Second) of Torts § 416 (1965), or (2) his status as a business invitee, Greenwell v. Meredith Corp., 189 N.W.2d 901 (Iowa 1971).

I. Claim under Restatement theory. We must first consider whether Lunde's "peculiar risk" theory is an issue of fact or law. Lunde contends the trial court erred in granting the motion for judgment notwithstanding the verdict because liability of Winnebago was a matter for the jury and not the court. However, the question is whether, under these facts, a property owner owed a duty to an employee of an independent contractor. This is a legal question. See Porter v. Iowa Power & Light Co., 217 N.W.2d 221, at 232-33 (refusal to submit instructions under section 416 upheld); Snider v. Northern States Power Co., 81 Wis.2d 224, 231, 260 N.W.2d 260, 263 (1977).

The general rule is that an employer of an independent contractor is not vicariously liable for injuries arising out of the contractor's negligence. Although various reasons have been suggested as the basis for this rule, the commonly-accepted reasoning is the lack of control by the employer over the details of the contractor's work. W. Prosser, Handbook of the Law of Torts § 71, at 468 (4th ed. 1971). In the present case, however, Lunde claims that due to the dangerous nature of the work in which he was engaged his injury falls within an exception to the general rule, set forth in the Restatement of Torts:

Restatement (Second) of Torts § 416, at 395 (1965). We adopted section 416 in Giarratano v. Weitz Co., Inc., 259 Iowa 1292, 147 N.W.2d 824 (1967). Liability under section 416 does not turn upon the employer's negligence, but upon vicarious liability; the negligence of the independent contractor is imputed to the owner in the same manner as if the contractor were its employee. Restatement (Second), supra § 416, Introductory Note, at 394.2

The obvious problem in applying section 416 is in deciding what constitutes a "peculiar risk of physical harm to others unless special precautions are taken." Lunde contends that working at a height of approximately twenty-five feet on a building was a peculiar risk unless the "special precautions" of scaffolding, nets, or "lifelines" were provided by Henningsen. Winnebago, however, contends that the risk of a fall in this case was not the "peculiar risk of physical harm" envisioned in the exception.

The Restatement sheds some light on the meaning of these simply phrased, yet troublesome, criteria of section 416:

Restatement (Second), supra, § 413, Comment b at 385 (emphasis added).3 A discussion of the application of section 416 in building and demolition cases is also provided:

Id., Comment c, at 386 (emphasis added). Demolition of a building without taking precautions to prevent the fall of a free-standing wall, excavations immediately adjoining a public highway without protective fencing, and digging a ditch in a public place without warning lights are cited as examples of projects which might result in liability of the employer of an independent contractor under section 416 because of the likelihood of injury. Id., § 416 Comment c, Illustrations 1, 2, at 396.

Comment d to section 416 states "it is not essential that the work which the contractor is employed to do be in itself an extra-hazardous or abnormally dangerous activity, or that it involve a very high degree of risk in the vicinity." Id. at 397. What is required is that the work be "likely to involve a peculiar risk of physical harm unless special precautions are taken," id. (emphasis added), and that it be "a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of doing the work, or the particular method which the employer knows that the contractor will adopt," id., Comment e, at 397 (emphasis added).

The requirement that such a risk will likely attend the performance of the work seems to insert the element of foreseeability. In fact, one writer has proposed analysis of foreseeability as a basis for resolving issues of employer liability:

Smith, Collateral Negligence, 25 Minn.L. Rev. 399, 428 (1941) (footnotes omitted). Thus, if performance of work "in its normal manner" exposes others to undue risk of harm, an employer may be held liable for the acts of the independent contractor; the nature of the work itself suggests danger. On the other hand, if the nature of the work is such that performance of it in its usual manner would not expose others to unreasonable peril, the employer is not liable, even though acts of negligence are actually committed in the course of the job. Such torts are deemed to be "collateral" to the risk created by the nature of the work itself. Id. at 430; accord, Carson v. Blodgett Construction Co., 189 Mo.App. 120, 126-27, 174 S.W. 447, 448 (1915). The Carson court explained the distinction in this way:

Carson v. Blodgett Construction Co., id. at 126, 174 S.W. at 448.

The general rule is that ordinary building projects are not covered by the peculiar risk rule:

41 Am.Jur.2d Independent Contractors § 43, at 810 (1969); accord, Cutlip v. Lucky Stores, Inc., 22 Md.App. 673, 686, 325 A.2d 432, 438-40 (Ct.Spec.App.1974) (death caused by "either a defective concrete base and/or the failure to stabilize structural steel beams" employer not liable); Elder v. Pacific Telephone & Telegraph Co., 66 Cal.App.3d 650, 658-60, 136 Cal.Rptr. 203, 206-07 (1977). In Elder, the plaintiffs were employed by an independent contractor and were engaged in the demolition of a concrete fire-escape landing. They stood on the landing while cutting away its steel support, and it fell. The court noted that, while several risks might attend the work, they did not arise from the nature of the project itself, and the employer was not liable under the "peculiar risk" theory:

Id. at 660, 136 Cal.Rptr. at 207; accord, Anderson v. Chancellor Western Oil Development Corp., 53 Cal.App.3d 235, 241-43, 125 Cal.Rptr. 640, 643-45 (1976) (fall of scaffold; risk held to arise from negligence in failing to secure, not from nature of work itself); Beil v. San Antonio Amusement Co., 69 S.W.2d 833, 833-34 (Tex.Civ. App.1934) (employer of independent contractor not liable where contractor's workman, installing a sign over a sidewalk, dropped a chisel on the plaintiff: "the accident by which [plaintiff] was injured did not incur from the erection or repair of the sign, but from an act of negligence of one of the employees of the independent contractor employed to work on the sign"); see Majestic Realty Associates v. Toti Contracting Co., Inc., 30 N.J. 425, 435-36, 153 A.2d 321, 326 (1959).

Applying these principles to Lunde's claim against Winnebago, we must determine whether the risks incurred inhered in the nature of the work itself, or from collateral acts of negligence by Henningsen and its employees in carrying it out. What types of work by their very nature, involve a peculiar risk of harm so as to invoke the remedies of section 416 of the Restatement? One writer suggests this analysis:

P. Mechem, Outlines of the Law of Agency § 488, at 336-37 (4th ed. 1952).

In Porter v. Iowa Power & Light Co., 217 N.W.2d 221, 232-33 (Iowa 1974), an employee of an independent contractor was electrocuted when a crane operated by a fellow employee contacted a high-voltage power line. We noted that section 416 does not apply to "the taking of routine precautions... against ordinary and customary dangers," and concluded that the danger was not inherent in the work in which the decedent was engaged, street paving:

Giarratano v. Weitz Co., Inc., is distinguishable. It involved the installation of a gypsum roof eighty feet above the ground, and this court held that constituted a peculiar risk inherent in the nature of the work. 259 Iowa at 1306-08, 147 N.W.2d at 832-34.

The work involved here, at the height of approximately twenty-five feet, involves some degree of risk. But was such a risk inherent in the construction of the building because the project was "conspicuously, exceptionally, unusually dangerous... [with] the mention or sight of such work immediately caus[ing] the reaction `DANGER!' ..."? P. Mechem, Outlines of the Law of Agency, supra, at 336-37. We think not. Construction of the plastics plant fell within the classification of ordinary building operations, which are not generally considered to involve a peculiar risk. See 41 Am.Jur.2d, supra, at 810. The precautions which could have reduced this risk were routine and "which any careful contractor could reasonably [have been] expected to take, against all of the ordinary and customary dangers" inherent in the project. Porter v. Iowa Power & Light Co., 217 N.W.2d at 232-33, quoting Restatement § 413, supra, Comment b, at 385.

Lunde contends Winnebago was bound to know "what special precautions were required under the circumstances" because regulations of the Occupational Safety and Health Act, 29 C.F.R. §§ 1518.104, 1518.105 (1979), require safety belts and nets. However, that act may not be applied to "enlarge or diminish or affect in any other manner" any common-law or statutory rights or duties of employers or employees. 29 U.S.C. § 653(b)(4) (1970); Hare v. Federal Compress & Warehouse Co., 359 F.Supp. 214, 218 (D.C.Miss.1973) (O.S.H.A. violations could not be used to enlarge responsibility of owner under "peculiar risk" theory). In addition, we judicially note that the federal act and its implementing regulations are not addressed to employment involving peculiar risks but to day-to-day conditions involving sometimes minimal risk.

Moreover, if the height of the work alone was sufficient to make its performance subject to the peculiar risk doctrine, a homeowner who employs a painting contractor might even be held liable to a painter's employee injured, as a result of the contractor's negligence, in a twenty-five foot fall from the homeowner's house. This illustrates the results which would be incurred in applying section 416 to projects not dangerous by their nature but in which hazards are introduced by the negligence of the contractor. We conclude in the present case that the trial court correctly ruled as a matter of law that Winnebago was not liable under the rationale of the peculiar risk doctrine.

II. Failure to provide safe premises. The trial court refused to submit requested instructions on the duty of a possessor of land to provide a safe premises for a business invitee, relying upon Greenwall v. Meredith Corp., 189 N.W.2d 901 (Iowa 1971). Greenwall, however, involved sections 343 and 343A of the Restatement, which impose liability on "possessors" of land under certain circumstances. The Restatement provides that a "possessor of land" is

Restatement (Second) of Torts § 328E at 170 (1965). Here, Winnebago was not a possessor of the land; it had relinquished occupation and control of it to Henningsen during the construction period.

Section 422 of the Restatement also discusses premises liability of owners, but deals with cases in which owners have employed independent contractors to perform work on the land.

Restatement (Second) of Torts § 422, at 405 (1965).

The trial court ruled, and Winnebago now contends, that it had not retained possession of the property and section 422 is therefore inapplicable. Lunde claims that Winnebago, in effect, assumed the role of architect and therefore had the right of control on the project. However, the amount of an owner's involvement in overseeing the construction must be substantial in order to impose liability under a safe-premises theory:

Stilson v. Moulton-Niguel Water District, 21 Cal.App.3d 928, 936, 98 Cal.Rptr. 914, 918 (1971), quoting McDonald v. Shell Oil Co., 44 Cal.2d 785, 790, 285 P.2d 902, 904 (1955) (citations omitted). The evidence of control here falls short of that required and we conclude the trial court properly refused to instruct the jury on Winnebago's liability under his premises-liability theory.

We find no error and therefore affirm the trial court.

AFFIRMED.

All Justices concur except ALLBEE and SCHULTZ, JJ., who take no part.