Cromwell v. A & S Construction , 314 P.3d 1008 ( 2013 )

2013 UT App 240_________________________________________________________
THE UTAH COURT OF APPEALS
MICHAEL CROMWELL,
Plaintiff and Appellant,
v.
A & S CONSTRUCTION, INC. AND GUNS AND HOSES, INC.,
Defendants and Appellee.
Opinion
No. 20110385‐CA
Filed October 10, 2013
Fifth District, St. George Department
The Honorable G. Rand Beacham
No. 080501893
Elizabeth B. Grimshaw and Aaron J. Prisbrey,
Attorneys for Appellant
John H. Romney, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGE WILLIAM A. THORNE JR. concurred.1 JUDGE CAROLYN
B. MCHUGH concurred in the result.
CHRISTIANSEN, Judge:
¶1 Plaintiff Michael Cromwell challenges the district court’s
grant of summary judgment to defendant Guns and Hoses, Inc.
(Guns & Hoses) on Cromwell’s negligence claim. We affirm.
1. Judge William A. Thorne Jr. participated in and voted on this
case as a regular member of the Utah Court of Appeals. He retired
from the court before this decision issued.
Cromwell v. A & S Construction, Inc.
BACKGROUND
¶2 In 2006, property owners in Cedar City contracted with
A & S Construction, Inc. (A&S) to build a new residence.2 A&S
served as the general contractor on the project and supervised all
aspects of construction, including the construction of an elevator
shaft inside the residence between the basement and the top floor
of the home. Before the elevator was installed, A&S subcontracted
with Guns & Hoses to perform finish carpentry work on the home,
including installation of doors at the access to the empty elevator
shaft on the upper levels of the residence. Miguel Ramirez, the
owner of Guns & Hoses, installed these doors. Three weeks after
Ramirez installed the doors, Cromwell, an employee of Reber
Painting, was applying putty to the trim of the doors on the second
floor of the residence. When he opened the door at the elevator
shaft to apply putty to the inside, he fell approximately thirty‐six
feet down the empty elevator shaft and was seriously injured.
¶3 Cromwell filed a negligence action against A&S. A&S filed
a Notice of Allocation of Fault to Guns & Hoses, and the parties
stipulated to Cromwell amending his complaint to add Guns &
Hoses as a defendant.3 Cromwell added a cause of action for
negligence against Guns & Hoses, alleging that
Guns & Hoses owed a duty of care to install doors,
secure them and warn of known dangers, such as the
open elevator shaft, in a reasonable fashion and in
accordance with existing safety standards as it relates
2. “[W]hen reviewing a grant of summary judgment, we recite the
disputed facts in a light most favorable to the nonmoving party,”
in this case, Cromwell. See Begaye v. Big D Constr. Corp., 2008 UT 4,
¶ 5, 178 P.3d 343.
3. This appeal is interlocutory because it relates only to Cromwell’s
claims against Guns & Hoses.
20110385‐CA 2 2013 UT App 240Cromwell v. A & S Construction, Inc.
to the 2[nd] floor hinged door which opened onto the
empty elevator shaft.
....
. . . Guns & Hoses breached its duty to Mr. Cromwell
by failing to comply with OSHA standards and
otherwise take reasonable precautions to warn and
protect others on the premises of the danger posed
by the hinged door to an open elevator shaft.
¶4 Guns & Hoses moved for summary judgment, arguing that
it owed no legal duty to Cromwell because its duty was limited to
installing doors leading to the empty elevator shaft and “did not
extend to supervision or safety issues.” Guns & Hoses alternatively
argued that even if it had a duty to protect others from the risk
presented by the covered elevator shaft, it did not breach that duty
because it adequately secured the doors and warned of the danger
of the empty elevator shaft.
¶5 In opposition to Guns & Hoses’ motion for summary
judgment, Cromwell argued that subcontractors “owe a duty of
care for the work they do on a construction project.” Cromwell also
argued that disputed material facts existed regarding the timing
and manner in which the doors were secured and whether they
were secured at all.
¶6 The district court granted Guns & Hoses’ motion for
summary judgment, relying on the following facts that it viewed
as undisputed: (1) “[Cromwell] alleges that Guns & Hoses owed a
duty to secure the elevator shaft doors and warn of the danger of
the elevator shaft,” (2) “Guns & Hoses secured the elevator shaft
doors after installing them,” (3) “A&S confirmed that the elevator
shaft doors were secured by Guns & Hoses after they were
installed and before [Cromwell’s] fall,” (4) “[the homeowners] also
confirmed that the elevator shaft doors were secured by Guns &
Hoses after they were installed and before [Cromwell’s] fall.”
¶7 Based on these undisputed facts, the district court granted
summary judgment to Guns & Hoses. The district court’s summary
judgment ruling was based on its determination that Guns & Hoses
20110385‐CA 3 2013 UT App 240Cromwell v. A & S Construction, Inc.
owed no duty to Cromwell to secure the doors, but also on its
determination that, even if Guns & Hoses owed Cromwell such a
duty, the undisputed facts demonstrated that Guns & Hoses did
not breach that duty because it secured the doors and posted
warnings. The district court certified the order as a final judgment
at the request of the parties, and Cromwell appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Cromwell argues that summary judgment was
inappropriate because disputed issues of material fact existed
concerning the reasonableness of Guns & Hoses’ installation of the
doors. Cromwell also argues that the district court failed to view
the facts and reasonable inferences in the light most favorable to
him as the nonmoving party. Finally, he argues that the district
court erred in determining that Guns & Hoses owed him no duty.
¶9 “Summary judgment is appropriate only upon a showing
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Begaye v.
Big D Constr. Corp., 2008 UT 4, ¶ 5, 178 P.3d 343 (citation and
internal quotation marks omitted). “The question of whether a trial
court properly granted summary judgment is a question of law,
which we review for correctness.” Id. Similarly, whether a duty
exists is a question of law, and we review the district court’s
determination on that point for correctness. Ottens v. McNeil, 2010
UT App 237, ¶ 23, 239 P.3d 308.
ANALYSIS
I. Guns & Hoses Had No Duty to Protect Cromwell from the
Risk of Falling into the Elevator Shaft at the Time of the Injury.
¶10 Cromwell challenges the district court’s conclusion that
Guns & Hoses owed no duty to Cromwell at the time he arrived on
20110385‐CA 4 2013 UT App 240Cromwell v. A & S Construction, Inc.
the job site.4 Cromwell argues that “Guns & Hoses owed a duty of
care to perform the work it was hired to do in a reasonable
manner.” While Cromwell appears to view the question of duty as
a side issue to be “revisit[ed]” if the district court’s grant of
summary judgment were reversed, “without a duty, there can be
no negligence as a matter of law, and summary judgment is
appropriate,” see Tallman v. City of Hurricane, 1999 UT 55, ¶ 5, 985
P.2d 892 (citation and internal quotation marks omitted). Thus, our
first inquiry is whether Guns & Hoses owed a duty to Cromwell at
the time of his injury.
A. Guns & Hoses’ Duty as a Subcontractor
¶11 “The creator of an artificial condition on land may be liable
to others . . . for physical harm caused by its dangerous nature.” Id.¶¶ 8–9 (adopting Restatement (Second) of Torts § 385 (1965)).
Where a contractor is engaged to perform work without direct
supervision and control by the owner, the contractor is responsible
for preventing the risk arising out of the work, and administering
and distributing it. See Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d
322. Thus, so long as the work remains in his control, a contractor
“is subject to liability ‘as though he were the possessor of the
land.’” See Gonzalez v. Russell Sorensen Constr., 2012 UT App 154,
¶ 23, 279 P.3d 422 (quoting Restatement (Second) of Torts § 384
(1965)); see also id. ¶ 30 (concluding that section 384 of the
Restatement is an accurate statement of Utah law “governing the
liability of general contractors for harm caused to others by
conditions at a job site”). Where a general contractor hires a
subcontractor to perform a part of the work, the subcontractor is
4. The district court wrote at some length on whether Guns &
Hoses owed a “continuing duty to guard, monitor, maintain and
secure the elevator door” after completion of its work. While this
analysis by the district court may have, to some extent,
misapprehended Cromwell’s argument below, the district court
ultimately concluded that Guns & Hoses owed no duty to
Cromwell at the time of the injury. It is this conclusion that we
review.
20110385‐CA 5 2013 UT App 240Cromwell v. A & S Construction, Inc.
liable in the same manner but “for only such harm as is done by the
particular work entrusted to him.” See Restatement (Second) of
Torts § 384 cmt. d (1965).
¶12 Thus, a general contractor bears the risk of harm caused to
others, including employees of a subcontractor, by the dangerous
character of the structure being built while the work remains in the
general contractor’s charge. See Gonzalez, 2012 UT App 154, ¶¶ 21,
30 (concluding that a subcontractor’s employee had pleaded
sufficient facts supporting a direct negligence claim against the
general contractor under section 384 of the Restatement to preclude
summary judgment). While no Utah case specifically addresses a
subcontractor’s duties to the employees of another subcontractor,
we conclude that under Thompson v. Jess and section 384 of the
Restatement, a subcontractor owes the same duty to employees of
another subcontractor as it owes to any other person. See Thompson,
1999 UT 22, ¶ 13; Restatement (Second) of Torts § 384 & cmt. d; cf.
Tallman, 1999 UT 55, ¶ 30 (holding that a subcontractor may have
a duty under section 385 of the Restatement to employees of a
general contractor). This conclusion is consistent with how other
jurisdictions have addressed claims of negligence between
subcontractors. See, e.g., Sarmiento v. Stubblefieldʹs Custom Concrete,
Inc., 874 P.2d 997, 999 (Ariz. Ct. App. 1994) (holding that a
subcontractor owed a duty to perform its work without creating an
unreasonable risk to another subcontractor); Johnson v. A & M
Custom Built Homes of West Bloomfield, LPC, 683 N.W.2d 229, 232
(Mich. Ct. App. 2004) (“[A]s between two independent contractors
who work on the same premises, either at the same time or one
following the other, each owes to the employees of the other the
same duty of exercising ordinary care as they owe to the public
generally.” (citation and internal quotation marks omitted)); Tapia
v. Panhandle Steel Erectors Co., 428 P.2d 625, 629 (N.M. 1967)
(“‘Where two or more independent contractors, or a general
contractor and one or more subcontractors, are engaged in work on
the same premises, it is the duty of each contractor, in prosecuting
his work, to use ordinary and reasonable care not to cause injuries
to the servants of another contractor . . . .’” (quoting 57 C.J.S. Master
& Servant § 610)).
20110385‐CA 6 2013 UT App 240Cromwell v. A & S Construction, Inc.
¶13 However, a subcontractor’s liability to employees of another
subcontractor is limited to “only such harm as is done by the
particular work entrusted to him.” See Restatement (Second) of
Torts § 384 cmt. d; accord Gonzales, 2012 UT App 154, ¶ 26
(“[S]ection 384 of the Restatement (Second) of Torts correctly states
Utah law.”). The scope of a subcontractor’s duty to employees of
other contractors is exemplified by Weiser v. Bethlehem Steel Corp.,
508 A.2d 1241 (Pa. Super. Ct. 1986), wherein an employee of one
subcontractor on a construction site alleged that he was injured by
the negligence of another subcontractor. Id. at 1243–44. The general
contractor had contracted with Bethlehem Steel to erect the
structural steel frame of the building. Id. at 1243. Bethlehem Steel
was required to maintain temporary planking below its operations
in order to protect its own workers from falling and other workers
from being harmed by its operations. Id. Weiser was employed by
a subcontractor hired to weld permanent decking to the structure
after Bethlehem Steel removed the temporary planking and
relinquished control of each floor. Id. Weiser was injured when he
slipped and fell down an elevator shaft from the twelfth floor of the
structure after Bethlehem Steel had removed the temporary
planking on that floor and turned it over to the metal decking
subcontractor. Id. Weiser claimed that Bethlehem Steel was
negligent in removing the planking covering the elevator shaft on
the twelfth floor. Id. at 1243–44.
¶14 In evaluating Bethlehem Steel’s duty to Weiser, the superior
court first determined that under section 384 of the Restatement,
Bethlehem Steel “had the liability of a possessor of land with
respect to harm done by that portion of the work which it had
subcontracted to perform, erecting the building’s structural steel
frame.” Id. at 1245. Thus, Bethlehem Steel “had the duty to exercise
reasonable care to protect Weiser from harm which might be done
to him by dangerous conditions in the work Bethlehem Steel had
subcontracted to perform.” Id. at 1246. However, the court
determined that Bethlehem Steel’s responsibilities included only
erecting the building’s structural steel and laying temporary
planking on the floors immediately below its active operations to
prevent injuries from falls by Bethlehem Steel’s employees or
falling material. Id. Because the dangerous condition that caused
20110385‐CA 7 2013 UT App 240Cromwell v. A & S Construction, Inc.
Weiser’s injuries—the open elevator shaft—was created by the
general contractor, and because making the dangerous condition
safe on floors where it was not operating was not within the scope
of Bethlehem Steel’s contractual duties, Bethlehem Steel had no
duty to cover the elevator shaft to ensure workers’ safety where it
was no longer working. Id. Rather, because the general contractor
had created the dangerous condition of the elevator shaft and
Bethlehem Steel had relinquished control of the twelfth floor, the
duty to protect against such injuries fell upon the general
contractor and the subcontractor in control of the area at the time
of the accident. Id. at 1246–47.
¶15 We find the Bethlehem Steel court’s analysis and application
of section 384 of the Restatement persuasive here. Guns & Hoses
contracted to perform door framing and installation of doors
throughout the home, including the installation of doors at the
access to the elevator shaft. Guns & Hoses therefore had a duty to
exercise reasonable care to protect other workers from dangerous
conditions in the work that Guns & Hoses had contracted to
perform—installation of doors. Cf. id. at 1245. Thus, Guns & Hoses
would be liable for injuries caused by deficient installation or other
flaws in its own work that rendered that work dangerous to others.
However, Guns & Hoses did not create the dangerous condition of
the empty elevator shaft, nor did it exercise any control over the
condition of the shaft. Cromwell concedes in his complaint that
A&S “was solely responsible for maintaining an open empty
elevator shaft behind a hinged bedroom door.” A&S controlled all
work in and around the elevator shaft both before and after Guns
& Hoses completed its work and turned it over to A&S. A&S
directed Guns & Hoses to install the doors at the access to the
empty elevator shaft. While Guns & Hoses had a duty to exercise
reasonable care in installing the doors, that duty did not extend to
ensuring the safety of other workers around the dangerous
condition created by A&S.
20110385‐CA 8 2013 UT App 240Cromwell v. A & S Construction, Inc.
B. Duty of One Who Undertakes to Render Services
¶16 Cromwell also argues that once Guns & Hoses took steps to
secure the doors in front of the elevator shaft, “it also owed a duty
of care to others on the job site because it affirmatively undertook
the duty to protect against and warn of the danger.” “Where one
undertakes an act which he has no duty to perform and another
reasonably relies upon that undertaking, the act must generally be
performed with ordinary or reasonable care.” Stuckman ex rel.
Nelson v. Salt Lake City, 919 P.2d 568, 573 (Utah 1996) (citation and
internal quotation marks omitted).
¶17 We do not reach the question of whether Guns & Hoses
owed a duty on this basis because Cromwell has not properly
presented the issue to this court. An appellate brief must contain
“citation to the record showing that the issue was preserved in the
trial court” or “a statement of grounds for seeking review of an
issue not preserved in the trial court.” Utah R. App. P.
24(a)(5)(A), (B). Cromwell has not identified where this argument
was raised before the district court, and our review of the record
does not show that Cromwell “specifically raised” the issue and
“introduce[d] supporting evidence or relevant legal authority” to
afford the district court an opportunity to rule on the issue. See 438
Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation
and internal quotation marks omitted). Rather, Cromwell’s
argument on this claim before the district court consisted of one
cursory statement in his memorandum opposing summary
judgment and another at oral argument, neither of which were
supported with reference to relevant legal authority or supporting
evidence addressing the elements of this claim. Moreover,
Cromwell has not adequately developed this argument in his
briefing to this court. Our rules require “not just bald citation to
authority but development of that authority and reasoned analysis
based on that authority.” See Torrie v. Weber County, 2013 UT 48,
¶ 19 (citation and internal quotation marks omitted). Because
Cromwell failed to preserve this issue before the district court or
adequately brief it for decision by this court, we decline to address
it further.
20110385‐CA 9 2013 UT App 240Cromwell v. A & S Construction, Inc.
¶18 Cromwell has not demonstrated that Guns & Hoses owed
any duty to him to protect him from the risk of falling into the
elevator shaft. We therefore conclude that the district court did not
err in determining that Guns & Hoses owed no duty to Cromwell
at the time of his injury.
II. Because Guns & Hoses Had No Duty to Protect Cromwell
from this Injury, Summary Judgment Was Appropriate.
¶19 Cromwell argues that summary judgment was not
appropriate because the district court erred in determining that
there were no disputed issues of material fact. Summary judgment
is appropriate only when there is “no genuine issue as to any
material fact” and the moving party is entitled to judgment as a
matter of law. See Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5, 178
P.3d 343 (citation and internal quotation marks omitted). However,
the disputed facts identified by Cromwell relate only to whether
Guns & Hoses breached any duty it owed to him. Because
Cromwell has not demonstrated that Guns & Hoses owed a duty
to protect him from the injuries he sustained in the fall, any
disputed facts relating to whether Cromwell breached a duty are
not material. The district court accordingly did not err in
concluding that there was no genuine issue as to any material fact
that would preclude summary judgment. See id. Summary
judgment was therefore appropriate because Guns & Hoses was
entitled to judgment as a matter of law. See Tallman v. City of
Hurricane, 1999 UT 55, ¶ 5, 985 P.2d 892.
¶20 Cromwell also argues that the district court failed to view
the facts and inferences in the light most favorable to him as the
nonmoving party. However, the facts that Cromwell asserts the
district court failed to view in his favor all relate to whether Guns
& Hoses breached a duty. Absent a showing that prejudice likely
resulted from the district court’s ruling, “we will not reverse [the]
trial court for committing harmless error.” State v. Vargas, 2001 UT
5, ¶ 48, 20 P.3d 271 (alteration in original) (citation and internal
quotation marks omitted). The facts related to breach of a duty are
not material, because Cromwell has not demonstrated that Guns &
Hoses owed him a duty. Accordingly, any error in the district
20110385‐CA 10 2013 UT App 240Cromwell v. A & S Construction, Inc.
court’s failure to view those facts and inferences in the light most
favorable to Cromwell would be harmless.
CONCLUSION
¶21 Guns & Hoses’ duty to exercise reasonable care in hanging
doors at the access to an empty elevator shaft did not extend to
securing that shaft to prevent harm to other workers on the site.
Cromwell has not demonstrated that Guns & Hoses owed to him
any other duty that would support his claim of negligence. The
district court’s grant of summary judgment was therefore correct,
and any error in the district court’s consideration of the facts was
harmless.
¶22 Affirmed.
20110385‐CA 11 2013 UT App 240