This is an appeal in a wrongful death action brought by the personal representatives of Robert Moloso and Joseph Moloso against the State of Alaska. Decedents were killed on June 21, 1977, by a rock slide while working on a state highway project in Keystone Canyon north of Valdez, Alaska. The ultimate question on appeal is whether the superior court properly directed a verdict in favor of the state.
The state desired to have one of its existing roads re-routed. To that end it developed plans and specifications and called for contractors' bids. A joint venture consisting of Central Construction Co., Manson Construction and Engineering Co., Osberg Construction Co., and Ghemm Company, Inc. [hereafter "CMOG"] was awarded the project. CMOG subcontracted the rock excavation portion of the project to the Ferrante Corporation. The Molosos, two heavy equipment operators employed by the excavation subcontractor, were killed in a rock slide while in the course and scope of their employment. In the wrongful death action which followed, it was alleged that the state proximately caused the Molosos' deaths by failing to prudently discharge its affirmative duties to assure job safety, in its status both as owner of the premises on which the rock slide occurred and as employer of the general contractor, CMOG.
After both sides presented evidence at trial, the superior court granted a motion for a directed verdict in favor of the state. The court also awarded to the state attorney's fees in the amount of $25,000.
In reviewing motions for a directed verdict we must view the evidence in the light most favorable to the non-moving party. As we stated in Teller v. Anchorage Asphalt Paving Co., Inc., 545 P.2d 177 (Alaska 1976):
545 P.2d at 180.
Thus, if it appears from the facts of this case that a legal duty was owing to the Molosos, and if it appears that a jury reasonably could have found that such a duty was breached, then the granting of a directed verdict would be error. Therefore, we must set forth the pertinent facts in order to determine whether the directed verdict was properly entered.
The Richardson Highway, as it winds through the Keystone Canyon, follows the course of the Lowe River and, at one point in the canyon, runs through a tunnel. For some time this tunnel had been a problem for the highway department in terms of maintenance and safety. The state decided to re-route the highway and avoid the tunnel by bridging across the Lowe River to the west bank, and then bridging back to the east bank at the other end of the tunnel. The rock cliffs in this area, particularly on the west bank, rise several hundred feet on a very steep incline. As some rock had to be removed on both banks, this was considered one of the most difficult and complex excavation projects the state had ever undertaken.
Several geological studies were made of the rock slopes in the area, some by state geologists and one by C.O. Brawner, an independent consulting geotechnical engineer retained by the state. All of the studies indicated that the rock faces on the west slope were fractured and underlain with many discontinuities or seams on about a 60° angle, thus making the area susceptible to slope failure, or rock slides. These discontinuities posed a special problem for excavation because by cutting across these joints and layers of rock, the support for one or more layers could be destroyed. As precautions against these hazards, Brawner recommended that a pre-bid conference be held with the potential bidders to discuss precautions, that a "stability inspector" be retained for the project, and that the contract specifications provide for loose rock removal, rock bolting, and excavation on the west bank from the top down (to prevent work from being performed under the rock) at about a 60° angle (to coincide with the major bedding planes).
The Department of Transportation prepared plans and specifications for the project and on November 8, 1976, issued a call for bids. While the plans and specifications did not inform the potential bidders of the instability of the rock slopes, they did advise that the state had done foundation reports in the area and that the reports were available for contractor review.
After it was awarded the project, CMOG suggested two "value engineering proposals" prepared by Bruce Campbell, an engineer, as alternatives to the state's plans and specifications. A value engineering proposal is the contractor's presentation of an alternative method of achieving the same result at a lower cost. If the plan is accepted the state and the contractor split the cost savings. Change orders were issued by the state for the work to proceed on the basis of value engineering proposal No. 2 (VE-2). VE-2 involved a smaller bridge abutment on the west bank with reduced, but steeper, rock excavations on the west slope as compared to the original plan. Additionally, this plan required excavation beginning at road level and proceeding upward so that at times workers were under overhanging rock.
In May, 1977, the contractor staked the slopes on the west bank for excavation. When a state geologist, Mr. Lowell, observed that the slopes were steeper than the original plan had specified, he reported to the state project engineer, Mr. Gentry, the possibility of undercutting and slope failure, whereupon Gentry issued a stop-work order. After a series of meetings between state personnel and representatives of the contractor, the state's senior construction engineer, Mr. Shumway, overruled Gentry's decision and ordered the work to resume on the basis of VE-2.
On June 21, 1977, a D-8 Caterpillar tractor operated by Joseph Moloso was pioneering an access road on the west bank from the end of a work bridge to an area that had been blasted previously, so that the rubble could be removed. Although the tractor was not working in an area in which the state would pay for excavation (within the "pay lines"), there was evidence that it was doing work necessary for the completion of the project. At approximately 10:10 a.m., a rock slide killed Joseph Moloso as he was operating the tractor, and also killed Robert Moloso, who was standing in the area.
In this appeal, the Molosos advance several theories according to which the State of Alaska breached a duty of due care owed to the decedents. Under the Restatement (Second) of Torts (1965) the Molosos argue that the state assumed common law duties as an employer exercising control over an independent contractor (§ 414), as an employer failing to provide special precautions in risky work to be done by an independent contractor (§ 413), as an employer giving negligent orders or directions to an independent contractor (§ 410) and as a landowner aware of a dangerous condition (§ 343).
The state contends that the record is devoid of any evidence which will support liability on the part of the state under any of the theories asserted by the Molosos.
In general, the employer of an independent contractor owes no duty to the independent contractor's employees to protect them from the negligence of the employees' own master. On the other hand, the employer of the independent contractor does owe to these servants the duty to avoid endangering them by the employer's own negligent actions or omissions. Sloan v. Atlantic Richfield Co., 552 P.2d 157, 160 (Alaska 1976). As an example of this duty, the "retained control" theory of recovery is set forth in Restatement (Second) of Torts
Under this theory, if the state as the employer of CMOG
To determine whether the nature and extent of the control present is sufficient to impose liability, both the contractual provisions and the actual exercise of control are relevant. If the employer reserves and exercises only the right to inspect the construction work to see that the contract specifications are met while the independent contractor controls how and when the work is to be done, there is probably not sufficient retained control to subject it to liability. See DeVille v. Shell Oil Co., 366 F.2d 123, 125 (9th Cir.1966) (applying Alaska law); State v. Morris, 555 P.2d 1216, 1218 (Alaska 1976); Restatement (Second) of Torts § 414, Comment c (1965).
On the other hand, if the employer retains the right to direct the manner of the independent contractor's performance, or assumes affirmative duties with respect to safety, the employer has retained sufficient control to be held liable if he exercises that control negligently. Everette v. Alyeska Pipeline Service Co., 614 P.2d 1341, 1347 (Alaska 1980); Hammond v. Bechtel Inc., 606 P.2d 1269, 1275 (Alaska 1980); Hobbs v. Mobil Oil Corp., 445 P.2d 933, 934 (Alaska 1968). Comment a to § 414 indicates that the degree of control retained may be less than that which would be necessary to subject the employer to liability as a master, and is therefore consistent with a generally independent contractor relationship:
Restatement (Second) of Torts § 414, Comment a (1965).
Comment b provides a pertinent example:
Restatement (Second) of Torts § 414, Comment b (1965). It is normally a question of fact for the jury to determine whether an employer of an independent contractor has retained sufficient control so as to make the employer liable. Everette v. Alyeska Pipeline Service Co., 614 P.2d 1341, 1347 (Alaska 1980); Hobbs v. Mobil Oil Corp., 445 P.2d 933, 935 (Alaska 1968).
As an alternative source of this duty, the Molosos contend that the state "assumed" a duty of due care toward the Molosos by its affirmative conduct. In Hammond v. Bechtel Inc., 606 P.2d 1269, 1277 n. 14 & n. 15 (Alaska 1980), we noted the analytical similarity between the retention of control theory and the assumption of duty theory: "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully ..."
The state contends that any retention of control adopted in the contract amounted to nothing more than the state's exercise of its right to have the project built according to specifications. It maintains that the contractor in this case was delegated the responsibility to insure on-the-job safety, while the state was primarily concerned with the safety of the users of the by-pass after the construction was complete.
The superior court disposed of this question by directing a verdict for the state upon the latter's motion. The court concluded that "[p]laintiffs fail to cite any portion of the contract or adduce evidence involving the state's relationship with the joint venture which would sufficiently demonstrate that the state had the right to and in fact controlled the manner of doing the work."
The Molosos relied on the contractual provisions for the project and the actual course of performance of the construction to show the degree of control retained by
Viewing the evidence in the light most favorable to the Molosos, we find that reasonable minds could differ as to whether the state retained sufficient control over the construction operation to impose a duty of care owed to the Molosos, either by directing the manner of the independent contractor's performance, or by assuming affirmative duties with respect to safety. Therefore, we find that the superior court erred in granting the state's motion for a directed verdict on the issue of retained control, and accordingly we reverse. Because the standard of care and the causal connection between the state's acts and omissions will vary with the extent of the control retained by the state and with the extent of the duties assumed by the state, the questions of breach of duty and causation similarly must be left to the trier of fact.
The Molosos next argue that the state is liable because it negligently failed to take necessary precautions against the dangers involved in the work entrusted to a contractor. They base this theory of liability on Restatement (Second) of Torts § 413 (1965) which provides:
Comment b to this section indicates that this rule is concerned with risks that are peculiar to the work to be done, arising out of the character or the site of the work, against which a reasonable person would recognize the necessity of taking precautions. Therefore, the source of this duty is the type of work to be done. The employer can either provide for the taking of the precautions by the contractor, employ another independent contractor to take these precautions, or exercise reasonable care to provide for these precautions itself (Comment c). One important factor in determining liability under this section is the extent of the employer's knowledge and experience in the field of work to be done (Comment f).
The state's response to this argument is that "as a matter of law, the rule set out in § 413 does not and should not be extended to employees of independent contractors injured
The state's argument misses the thrust of § 413 and the Molosos' appeal. Section 413, as the Molosos argue under the facts of this case, is a theory of personal rather than vicarious liability. Liability is imposed for the failure of the employer itself to adequately provide for precautions against danger.
The following relevant evidence, viewed in the light most favorable to the Molosos, was presented at trial:
The evidence presents questions as to which reasonable minds could differ: did the work necessarily involve a danger requiring precautions? Did the state provide for the taking of these precautions by delegating certain safety responsibilities to the contractor? If not, did the state itself exercise reasonable care to provide for precautions? Although the evidence in totality may permit inferences to be drawn favorable to the state, the determination of these matters must be left to the trier of fact.
The Molosos next argue that the state, as the engineer and architect of the Keystone Canyon Project, is liable because it negligently prepared the plans and specifications of the project and that the contractor's acts or omissions pursuant to these plans and specifications caused the deaths of Robert and Joseph Moloso.
The state contends that its duties as engineer and architect did not extend to the employees of an independent contractor, as this would make it vicariously liable for the acts and omissions of the general contractor. However, the theory of liability of § 410, like the previously discussed § 413, is that of personal fault on the employer's part. The employer is only subject to liability for harm due to unsafe conditions caused by the imperfections in plans and specifications provided by the employer.
The state also contends that no evidence upon which reasonable minds could differ was presented to show negligence in the design or breach of the standard of care by the state in its capacity as engineer. It is undisputed that the Keystone Canyon Project was initially designed by the State of Alaska, Department of Highways. The VE-2 plan, as an alteration of the original plan, was designed by Bruce Campbell, a
It is the duty of an engineer or architect to exercise reasonable care, or the ordinary skill of the profession, for the protection of anyone lawfully upon the premises whose injury is reasonably foreseeable as the result of negligent design, plans, orders, or directions.
The state also contends that since the Molosos were not working within the area of excavation (i.e., the "pay lines"), even if
The evidence presented at trial indicated:
While the state presented contrary evidence to establish that the Molosos and their supervisor planned what they were going to do without any prior notice to the state, reasonable persons could differ in their conclusions as to whether the Molosos were working pursuant to orders, directions, or plans issued by the state, and whether this was the proximate cause of their deaths. As such, this determination should have been left for the jury.
Finally, the state contends that the discretionary function exception to the Alaska Tort Claims Act, AS 09.50.250,
In Japan Air Lines Co., Ltd. v. State, 628 P.2d 934 (Alaska 1981), we held that the state could be held liable for injuries which resulted from the negligent design of an airport taxiway.
628 P.2d at 938. While the decision in the present case to re-route the highway at that particular location rises to the level of a basic policy formulation, the preparation and alteration of the plans and specifications, and the supervision of the manner in which the work was carried out, involved merely operational decisions to implement this basic policy. Once the state decided to and did undertake the task of re-routing the highway for better road maintenance, travel, and safety, it was obligated to use due care in its design and construction.
In Japan Air Lines, we relied on several cases from other jurisdictions holding that design decisions in highway construction do not come within the discretionary function exception.
The Molosos argue, as an alternative source of duty, that the state in its status as the landowner of the construction site owed a duty to protect other persons against harm created by a dangerous condition of the land. This duty arises in certain instances where the landowner (1) knows or by the exercise of due care should know of an unreasonable risk of harm to persons on the land, (2) should expect that these persons will not discover or realize the danger presented, and (3) fails to exercise due care to protect those persons against danger. Restatement (Second) of Torts § 343 (1965).
The general principle of landowner liability in Alaska was articulated in Webb v. City and Borough of Sitka, 561 P.2d 731 (Alaska 1977):
561 P.2d at 733. Implicitly included in this duty is the duty to warn of hidden dangers of which the entering person is unaware. Other jurisdictions that do not distinguish between duties owed to licensees, invitees, and trespassers have recognized this duty to warn of hidden dangers. For example, in Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), the court stated:
70 Cal.Rptr. 97, 443 P.2d at 568.
Such a duty to warn, imposed upon a landowner by the latent hazardous condition of the land, would extend to the employees of an independent contractor working on the premises. However, even assuming that such a duty existed in this case, we find that any duty to warn of a latent condition was satisfied by warning or giving notice to the independent contractor
The evidence presented at trial indicated that copies of the Brawner and Lowell reports were not included in the pre-bid project specifications (see supra n. 1). No pre-bid conference was held to discuss the peculiar geological hazards. However, Campbell, a consultant hired by CMOG, testified that he knew that the state was concerned with the competency and stability of the west slope as early as February 1977. Campbell also had read Lowell's report voicing his concerns by May 1977, after a copy had been given to the contractor. Although Campbell did not receive a copy of the Brawner report until after the accident, Richard Simons, the superintendent of the project for CMOG, had both Lowell's report and Brawner's report by mid-May, 1977.
This evidence, even when viewed in the light most favorable to the Molosos, indicates that there was either an adequate warning or full knowledge by the independent contractor or one supervising the work sufficient to discharge the duty of the landowner to the employees of the independent contractor. We decline to impose upon a landowner the unreasonable burden of warning each and every worker on a job site of a latent hazardous condition of the land.
416 S.W.2d at 394.
Therefore, the trial court's granting of the state's motion for a directed verdict is affirmed with regard to the state's duties as mere landowner.
In summary, we hold that an employer of an independent contractor may be liable to the independent contractor's employees for the employer's own negligence with regard to the work to be done. The trier of fact could have found from the evidence presented in this case that the state retained sufficient control over the Keystone Canyon Project so as to impose liability on it for the deaths of the Molosos resulting from the rock slide. The trier of fact could
REVERSED and REMANDED for a new trial.
MATTHEWS, J., not participating.
W. Prosser, The Law of Torts § 71 at 469 (4th ed. 1971). See also Anderson v. Chancellor Western Oil Develop. Corp., 53 Cal.App.3d 235, 125 Cal.Rptr. 640, 643 (1975) (recognizing that § 413 covers the direct negligence of the employer while § 416 imposes vicarious liability); Morris, The Torts of An Independent Contractor, 29 Ill.L.Rev. 339, 349 (1935).
Miller v. DeWitt, 59 Ill.App.2d 38, 208 N.E.2d 249, 284 (1965), rev'd in part on other grounds in 37 Ill.2d 273, 226 N.E.2d 630 (1967) (finding workers foreseeable plaintiffs). Accord, Geer v. Bennett, 237 So.2d 311 (Fla.App. 1970); Loyland v. Stone & Webster Engineering Corp., 9 Wn.App. 682, 514 P.2d 184 (1973). See Annot., 97 A.L.R.3d 455 (1980).