TORBERT, Chief Justice.
On June 8, 1977, Appellant Weeks was injured when a scaffold on which he was standing collapsed, causing him to fall to the concrete floor below. Appellant was employed as an electrician by Howard P. Foley Company during the construction of the Tombigbee Power Plant in Leroy, Alabama. Alabama Electric Cooperative, Inc. (AEC) was the owner of the Tombigbee Power Plant. The plans and specifications for the power plant were prepared by Burns & McDonnell Engineering Company, Inc. (Burns & McDonnell).
Weeks filed suit on April 25, 1978, against AEC as owner of the premises; Specialty Contractors, Inc., as owners of the scaffold; National Union Insurance Co., the workmen's compensation carrier; and several fictitious parties defendant.
AEC filed a third-party complaint on September 19, 1978, alleging that Sullivan, Long & Hagerty, Inc. (SL&H), as a subcontractor of AEC, agreed to hold AEC harmless for all claims and losses relating to injuries to any person occurring by reason of Sullivan, Long & Hagerty's negligence.
On May 24, 1979, Weeks amended his complaint, identifying fictitious party "X" as Burns & McDonnell. AEC filed a cross-claim against Burns & McDonnell, alleging breach of contract and claiming that Burns & McDonnell should indemnify AEC for any damages assessed against AEC caused by the negligence of Burns & McDonnell.
Summary judgments were granted in favor of AEC against Weeks; in favor of Burns & McDonnell against Weeks; and in favor of Sullivan, Long & Hagerty against AEC. Each summary judgment was certified pursuant to Rule 54(b), Alabama Rules of Civil Procedure. Weeks filed notice of appeal on December 8, 1981. AEC filed notice of appeal on December 16, 1981.
The issues presented on appeal are:
(2) Whether the substitution of Burns & McDonnell for fictitious party "X" was proper.
(3) In addition, if Weeks's appeal results in reversal of the judgment entered in favor of AEC, the following issue is presented: Whether it was proper for the trial court to dismiss AEC's third-party complaint against SL&H.
Appellant contends that there are sufficient facts to find that an employer-employee relationship existed between AEC and Weeks, thereby creating a duty to Weeks by AEC to provide him with a safe place to work.
The principles regarding the legal duty of a premises owner to provide a safe place to work for employees of an independent contractor are well settled. See, e.g., Alabama Power Co. v. Smith, 409 So.2d 760 (Ala. 1981); Thompson v. City of Bayou La Batre, 399 So.2d 292 (Ala.1981); Pate v. United States Steel Corp., 393 So.2d 992 (Ala. 1981); Hughes v. Hughes, 367 So.2d 1384 (Ala.1979); Evans v. Kendred, 362 So.2d 206 (Ala.1978); Chrysler Corp. v. Wells, 358 So.2d 426 (Ala.1978).
These cases firmly establish the general rule that a premises owner owes no duty of care to employees of an independent contractor with respect to working conditions arising during the progress of the work on the contract. "The general rule does not apply, however, if the premises owner retains or reserves the right to control the manner in which the independent contractor performs its work." Thompson v. City of Bayou La Batre, 399 So.2d at 294; Hughes v. Hughes, 367 So.2d at 1386. "When the right of control is reserved, the relationship changes from one of premises owner and independent contractor to that of master and servant." 399 So.2d at 294.
A master-servant relationship is not created, however, when the owner merely retains the right to supervise or inspect work of an independent contractor as it progresses for the purpose of determining whether it is completed according to plans and specifications, and retains the right to stop work that is not properly done. Pate v. United States States Steel Corp., 393 So.2d at 995.
In face of AEC's proof denying any retained right of control, Weeks, as the non-moving party, must proffer some proof which creates a genuine issue of material fact; that is, he must offer some evidence on the factual issue as to whether AEC retained the right to direct the manner in which Weeks's employer, Howard P. Foley Company, or Specialty Contractors, the owner of the scaffold, performed its work. Any evidence tending to establish that AEC retained this control, either by contract or by its actions, will meet this burden of proof.
Weeks offers the following as evidence of AEC's retention or reservation of control over the manner in which the independent contractors performed their work:
(1) Article III, Section 1, of the contract between Burns & McDonnell and AEC provides:
(2) Article II, Section 5, of the contract between Sullivan, Long & Hagerty and AEC provides that the premises owner, AEC, "shall have the right to change the amounts or kinds of tools and equipment if at any time the progress of the work is unsatisfactory." Paragraph (c) of Section 5 provides that "The manner of construction of the project and all materials and equipment
(3) A memorandum by an AEC employee regarding a meeting on July 21, 1977.
(4) The deposition of AEC employee John B. Howard is offered to show that Howard attended a weekly safety meeting held by the various contractors.
After this Court's examination of the contracts, the memorandum and the deposition of John B. Howard, we conclude that there is no evidence to support Weeks's claim of reserved control by AEC over the employees of the various contractors.
First, examining the contract between AEC and Burns & McDonnell, we quote Article III, Section 1:
The plans and specifications of the power plant were prepared by Burns & McDonnell. The contract between AEC and Burns & McDonnell required Burns & McDonnell to ensure that the plant was built according to the plans and specifications, but this responsibility did not include control over the employees of the individual contractors. This contractual provision, as well as the next one, only provides for assurances that the work would be completed according to the plans and specifications of the contract.
Second, Article II, Section 5, paragraphs a, b, and c, of the contract between AEC and Sullivan, Long & Hagerty, provides:
Further, Article IV, Section 1, of the same contract provides:
We cannot conclude that these provisions reserved in AEC the power to control the manner in which the various contractors performed their work. AEC merely retained the right to supervise or inspect the work of each independent contractor as it progressed for the purpose of determining whether it was being completed according to plans and specifications.
Thus, the contracts offered by appellant do not support his theory. This is not conclusive, however, because "[i]n Alabama, agency is determined by the facts, and not by how the parties may characterize the relationship." Semo Aviation, Inc. v. Southeastern Airways Corp., 360 So.2d 936, 940 (Ala.1978). Weeks may, therefore, offer proof that AEC through its actions retained the right to direct the manner in which the contractors performed this work. Pate v. United States Steel Corp., 393 So.2d at 994-95.
The evidence offered by Weeks fails to show that such control existed. The memorandum of July 21, 1977, states in pertinent part:
Finally, we examined the deposition of John B. Howard. Howard was employed by AEC as a project engineer. He was principally assigned to the Tombigbee project as AEC's representative. He primarily coordinated the activities of Burns & McDonnell with AEC. Howard stated that each individual contractor was responsible for the safety of its employees and for the work which the contractor was to perform. According to Howard, AEC made no formal safety inspection, but he did say that if he had observed a dangerous situation, he would have tried to get the situation remedied. He did not, however, find it necessary to do this on the Tombigbee project.
Howard also attended weekly "coordination meetings." Safety on the worksite was one topic discussed. Howard's only input was to ask contractors to keep the worksite clean. There is no evidence in Howard's deposition which shows that AEC exercised any control over the manner of the contractors' work. Specifically, there is no evidence that AEC retained the right to direct the manner in which Weeks's employer, the Howard P. Foley Co., or the owner of the scaffold, Specialty Contractors, performed its work.
AEC, as the party moving for summary judgment, had the initial burden of clearly showing there is no genuine issue as to any material fact. Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981). AEC met this burden. Weeks, as the non-moving party then had to counter AEC's proof with evidence sufficient to give rise to a genuine issue of material fact. We find no evidence in the record to support Weeks's position. AEC was entitled to a summary judgment.
The next issue concerns the summary judgment granted in favor of Burns & McDonnell and against Weeks. Weeks contends his substitution of Burns & McDonnell for fictitious party "X" was proper. We do not agree.
Fictitious party "X" was described in appellant's original complaint as the "Person, firm or corporation who was the owner or party in control of the premises where the accident described in the complaint occurred."
In amending his complaint to substitute Burns & McDonnell for "X," appellant identified "X" as "Burns and McDonnell Engineering Company, Inc., a corporation, the alter ego, servant, agent, or employee of Alabama Electric Cooperative, Inc., the owner of the real property and party in control of the premises where the accident described in the complaint occurred."
Rule 9(h), Alabama Rules of Civil Procedure, provides:
For Burns & McDonnell to have been properly substituted for "X," Burns & McDonnell would have to be either owner of the premises or the party in control of the premises.
In his amendment to the complaint, Weeks characterizes AEC as owner or party in control of the premises and Burns & McDonnell as the alter ego, servant, agent or employee of AEC. Burns & McDonnell was an independent contractor. Burns & McDonnell prepared the design and specifications for the Tombigbee project. It contracted to ensure that the plant was built according to this design and these specifications. There is no evidence that Burns & McDonnell was the alter ego, servant, agent or employee of AEC. Therefore, Burns & McDonnell could not be "X." See, Minton v. Whisenant, 402 So.2d 971 (Ala.1981).
The trial court was correct in granting summary judgment. The amendment adding Burns & McDonnell as a party does not relate back to the original complaint and thus, the statute of limitations is a bar to this claim. See Walden v. Mineral Equipment Co., 406 So.2d 385 (Ala.1981); Minton
Because we affirm the judgment in favor of AEC, it is not necessary to reach the issues in the appeal of AEC as to the summary judgment entered in favor of the third-party defendant, Sullivan, Long & Hagerty.
All Justices concur.