No. 5-746 / 04-1837Court of Appeals of Iowa.
Filed December 7, 2005
Appeal from the Iowa District Court for Cherokee County, David Lester, Judge.
Appeal of summary judgment entered in favor on Sioux Valley Memorial Hospital on Sand’s claims of negligence. AFFIRMED.
Patricia K. Wengert of Roehrick, Krull Blumberg, P.C., Des Moines, for appellant.
Barry Vermeer of Gislason Hunter, LLP, Des Moines, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
SACKETT, C.J.
Alan Sand and Constance Sand appeal after Sioux Valley Memorial Hospital (Sioux Valley) was granted summary judgment in its favor. Sand and his wife sued Sioux Valley alleging negligence and loss of consortium after he was injured by an explosion while doing demolition work for an independent contractor on the hospital premises. Sand was working on the hospital premises for an independent contractor at the time of the accident and the general rule is that an employer of an independent contractor is not vicariously liable for injuries arising out of the contractor’s negligence. The district court ruled that Sioux Valley owed no duty of care to Sand as a matter of law and that Sand could not prove res ipsa loquitur as a matter of law. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
On November 2, 1999 Grundman-Hicks Construction entered into a contract with Sioux Valley Memorial Hospital (Sioux Valley) to remodel some areas of the hospital facility. Alan Sand was employed as a laborer for Grundman-Hicks. In doing demolition work at the hospital a coworker of Sand’s cut a sewer vent pipe with an electric saw while Sand was nearby. The vent pipe exploded, knocking Sand unconscious and causing him serious injury. As a result, Sand and his wife filed an action against Sioux Valley alleging causes of action for negligence, res ipsa loquitur, and loss of consortium. Sand’s theory of the case presented to the district court was that Sioux Valley employees had dumped chemicals down the drain which led to the explosion when the vent pipe was cut. Sioux Valley contended there was no evidence as to what caused the explosion and, specifically, there was no evidence that Sioux Valley employees dumped chemicals or that such chemicals caused the explosion.
Sioux Valley filed a motion for summary judgment arguing that Sand failed to produce any evidence of negligence and that Sand could not prove a claim of res ipsa loquitur. The district court granted summary judgment in favor of Sioux Valley. First, the district court concluded that Sioux Valley owed no duty of care to Sand because Sioux Valley did not retain a right to control the area where Sand was injured while the demolition and construction work was ongoing and because the peculiar risk doctrine did not apply to the case at hand. Second, the district court concluded Sand’s res ipsa loquitur claim could not be sustained because the pipe’s condition was changed by the contractor and there was an intervening act prior to the injury, that being Sand’s coworker cutting the vent pipe. Finally, summary judgment as to Sand’s wife’s claim of loss of consortium was granted in favor of Sioux Valley because it was a derivative of the other claims.
On appeal, Sand argues that (1) the district court erred in concluding there was no genuine issue of material fact as to whether Sioux Valley maintained control of the construction zone, (2) the district court erred in its application of the peculiar risk doctrine, and (3) the district court erred in granting summary judgment in favor of Sioux Valley on the res ipsa loquitur claim.
II. SCOPE OF REVIEW.
We review summary judgment rulings for correction of errors of law. Iowa R. App. P. 6.4; Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005). Where the record shows no genuine dispute of a material fact, summary judgment is appropriate. Id. In determining whether summary judgment is appropriate, we view the entire record in a light most favorable to the nonmoving party Id. We also indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question. Id.
III. ANALYSIS.
Negligence.
To recover on a claim of negligence Sand must show (1) Sioux Valley owed him a duty of care, (2) Sioux Valley breached that duty, (3) Sioux Valley’s breach was the actual and proximate cause of Sand’s injuries, and (4) Sand suffered damages.
The fighting issue as to Sand’s negligence claim is whether Sioux Valley owed Sand a duty of care. The existence of a duty is question of law for the court to decide. Stotts v. Eveleth, 688 N.W.2d 803, 807
(Iowa 2004). “The general rule is that an employer of an independent contractor is not vicariously liable for injuries arising out of the contractor’s negligence. . . . The commonly-accepted reasoning for this proposition is the lack of control by the employer over the details of the contractor’s work.”
Downs v. A H Const., Ltd., 481 N.W.2d 520, 523-24 (Iowa 1992). There are exceptions to this general rule, two of which Sand alleges in the present case.
The first exception to the general rule Sand alleges is applicable is that he was owed a duty of care as a business invitee. A possessor of land does owe a duty of care to invitees Wiedmeyer v. Equitable Life Assurance Soc’y, 644 N.W.2d 31, 33
(Iowa 2002). In the present case the issue is whether Sioux Valley was the possessor of land when the injury occurred. Whether a party is appropriately characterized as a possessor of land is dependent upon the control the party maintains over the land. Id. Sand argues that Sioux Valley did maintain a sufficient amount of control over the premises to still be considered the possessor of the property, at least to the extent that there is a genuine issue of material fact on this issue. To conclude that a duty is owed the possessor’s “involvement in overseeing the construction must be substantial.” Robinson v.Poured Walls of Iowa, Inc., 553 N.W.2d 873, (Iowa 1996) (quotin Lunde v. Winnebago Indus., Inc., 299 N.W.2d 473, 479 (Iowa 1981)). “Thus although the possessor-of-land exception is defined by control over the land, courts make this determination by looking at the degree of control exercised over the work.“Id. (emphasis original).
The degree of control retained by the employer is the critical element in determining liability. “[T]he employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention or a right of supervision that the contractor is not entirely free to do the work in his own way.”
Hernandez v. Midwest Gas Co., 523 N.W.2d 300, 303
(Iowa Ct.App. 1994) (quoting Restatement (Second) of Torts § 414, cmt. c, at 388 (1965)).
We view Sand’s allegations of control in the light most favorable to Sand, as the nonmoving party in a summary judgment action. Sand makes the allegation that Sioux Valley’s maintenance employees consulted with the contractor’s employees and gave instruction as to where there were electrical and oxygen hazards, and Sioux Valley employees responded to the explosion and assumed control over investigation into the explosion. Even accepting Sand’s allegations as being true, we conclude that there is not sufficient evidence to demonstrate Sioux Valley retained control over the area where the contractor’s employees were working. Sioux Valley did not owe Sand a duty as a business invitee.
The second exception to the general rule of no duty in the case of an independent contractor pointed to by Sand is the peculiar risk doctrine found in Restatement (Second) of Torts, sections 413 and 416. These sections of the Restatement were adopted inGiarratano v. Weitz Co., 259 Iowa 1292, 1307, 147 N.W.2d 824, 833 (1967). The general rule derived from these sections is that when one employs an independent contractor to do work that the employer should recognize as likely to create a peculiar risk of physical harm to others, the employer must take precautions to avoid the peculiar risk and is liable for the contractor’s negligence. Lunde, 299 N.W.2d at 476. The supreme court has further explained:
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. . . . 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.
Id.
In the present case, Sand argues the peculiar risk doctrine should apply. However, construction and demolition work has repeatedly been held to not create a peculiar risk. Id. at 477 (“Ordinary building operations or activities, including both construction and demolition, are generally not considered work of an inherently or intrinsically dangerous character. . . .”); see also Downs, 481 N.W.2d at 523-24. Additionally, in a case that is somewhat similar to the present case in terms of the activity at issue, our court held that “cutting and capping a live gas line does not rise to the level of a peculiar risk or an inherent danger.” Hernandez, 523 N.W.2d at303. Sioux Valley owed no duty to Sand under the peculiar risk doctrine.
Because we have determined this case does not fall within one of the exceptions to the general rule that an employer of an independent contractor does not owe a duty of care to the employees of the contractor, we hold Sioux Valley owed no duty of care to Sand in the present case.
Res Ipsa Loquitur.
Res ipsa loquitur is a type of circumstantial evidence that permits an inference as to the cause of the injury when (1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such that in the ordinary course of things it would not happen if reasonable care had been used. See Clinkscales v. Nelson Securities,Inc., 697 N.W.2d 836, 847 (Iowa 2005). “Notwithstanding the `exclusive control’ language, a plaintiff relying on res ipsa loquitur need not prove that the defendant had control of the instrumentality when the injury occurred.” Weyerhaeuser Co. v.Thermogas Co., 620 N.W.2d 819, 832 (Iowa 2000).
Res ipsa loquitur is not applicable in the present case for the same reason Sand cannot maintain his general negligence action; that is, Sioux Valley did not owe Sand a duty of care. Res ipsa loquiturdoes not terminate the need for plaintiff to establish that a duty was owed to plaintiff by the defendant. Restatement (Second) of Torts § 328D(1)(c), at 156 (1965); see
62 Am. Jur. 2d Premises Liability § 57, at 432 (2005) (“The doctrine o res ipsa loquitur does not apply where the defendant owes no duty to the plaintiff. Res ipsa cannot be used to inferentially supply the factual elements required to show that a duty was owed.”); see also Barker v. Clark, 33 S.W.3d 476, 480 (Ark. 2000) (“In order for the doctrine of res ipsa loquitur to be applicable . . . [plaintiff must establish] the defendant owes a duty to the plaintiff to use due care.”); Ravin v. Gambrell, 788 P.2d 817, 822 (Colo. 1990) (“[T]o establish a prima facie case of res ipsa loquitur a plaintiff must present evidence that . . . the presumed negligence is within the scope of the defendant’s duty to the plaintiff.”); Spidle v. Steward, 402 N.E.2d 216, 218 (Ill. 1980) (“[Res ipsa loquitur] will not apply unless a duty of care is owed by the defendant to the plaintiff.”) Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr, 564 So.2d 654, 666 (La. 1989) (“The plaintiff must also establish that the defendant’s negligence indicated by the evidence falls within the scope of his duty to the plaintiff.”); Davis v. Jackson, 604 S.W.2d 610, 612 (Mo.Ct.App. 1980) (“Res ipsa loquitur cannot be used to inferentially supply the factual elements required to show that a duty was owed. Res ipsa loquitur leads only to the conclusion that the defendant has not exercised reasonable care and is not in itself any proof that he was under a duty to do so.”); Valley Props. Ltd. P’ship v. Steadman’s Hardware, Inc., 824 P.2d 250, 254 (Mont. 1992) (“[Res ipsa loquiturapplies where] the indicated negligence is within the scope of the defendant’s duty to the plaintiff.”); Strong v. Shaw, 629 P.2d 784, 786
(N.M.App. 1980) (“Res ipsa loquitur applies after the duty is established.”).
AFFIRMED.