Troy McCormick and Lynn McCormick v. Nikkel & Associates, Inc. D/B/A NAI Electrical Contractors, a Corporation

IN THE SUPREME COURT OF IOWA
No. 10–1889
Filed May 25, 2012
TROY MCCORMICK and
LYNN MCCORMICK,
Appellants,
vs.
NIKKEL & ASSOCIATES, INC. d/b/a
NAI ELECTRICAL CONTRACTORS,
a Corporation,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Cherokee County, Nancy L.
Whittenburg, Judge.
A subcontractor seeks further review of a court of appeals decision
reversing the summary judgment in its favor in a negligence case.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
Steven D. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for
appellants.
Ned A. Stockdale of Fitzgibbons Law Firm, L.L.C., Estherville, for
appellee.
2
MANSFIELD, Justice.
This case presents the question whether a subcontractor that
properly performs electrical work on a jobsite, then locks up the work
and transfers control to the property owner, owes a duty of care to an
employee of the owner electrocuted six days later when the owner fails to
deenergize the work site in contravention of various warnings and
regulations. We conclude that no such duty is owed under the
circumstances. Accordingly, we affirm the summary judgment granted
by the district court and vacate the decision of the court of appeals
reversing that grant of summary judgment.
I. Facts and Procedural Background.
Little Sioux Corn Processors operates an ethanol plant located near
Marcus, Iowa.1 In 2006, Little Sioux was expanding the capacity of that
plant. Part of that expansion involved electrical upgrades and changes.
Little Sioux hired Fagen Engineering, Inc. to design the new electrical
loop and to specify the electrical equipment to be included in the loop.
Little Sioux purchased the electrical equipment needed for the electrical
loop from Graybar Electric. Among the items purchased from Graybar
were several switchgears. A switchgear is a large metal cabinet mounted
on a pad that receives and transmits high-voltage electricity and,
through mechanically operated switches, controls the overall flow of
electricity within the distribution system.
Little Sioux hired a contractor, Schoon Construction Company, to
work on the electrical loop by boring in and pulling the electrical cables
that connected the components of the new electrical loop and placing
and installing the switchgears on their mounting basements. Schoon in
1Because this case was resolved on a motion for summary judgment, we set
forth the facts in the light most favorable to the nonmoving party, i.e., the plaintiff.
3
turn hired the defendant, Nikkel & Associates, Inc., to do “terminations,”
which involved hooking up electrical cables to terminals in the
switchgears. This work was performed by early October 2006, and the
lines were energized through the switchgears.
Little Sioux also purchased fault indicators from Graybar. These
optional devices were to be mounted inside the switchgear cabinet. A
fault indicator signals when there is an interruption or fault in the
electrical circuit.
The original plan was for Nikkel to install the fault indicators
inside the cabinets. However, it turned out the holes on the mounting
brackets were too small. On November 7, 2006, Ken (Buford) Peterson,
of Nikkel, spoke with Russell Konwinski, Little Sioux’s maintenance
manager, and offered to drill out the holes in the brackets. To save
money, Konwinski declined the offer and said he would have his
personnel modify the mounting brackets and install them in the
switchgear cabinets.
Peterson left the work site pending the completion of that task.
When Peterson left, the switchgear cabinets were closed and secured
with penta-head bolts that could only be removed through the use of a
special penta-head socket wrench, which Little Sioux had ordered along
with the electrical equipment. In addition, the switchgear cabinets bore
signs warning of the hazard of high voltage.
Six days later, on November 13, 2006, Little Sioux’s Konwinski
asked fellow employee Mike Jacobson, an electrician, to remove, drill out,
and install the fault indicator brackets. Jacobson said he needed help
because of other things going on, so Konwinski assigned Jeff Sangwin
and Troy McCormick, the plaintiff, to assist Jacobson. Konwinski
believed the switchgears were not energized and so informed the group.
4
Little Sioux’s general manager, Steve Roe, knew that Switchgear
#4, where the accident occurred, was energized on November 13. In fact,
it had to be energized in order for the plant to be running because it was
on the line between the main panel and the plant.
Peterson reenergized the electrical circuit from the main panel to
Switchgear #4 before he left the site on November 6. Peterson claims he
energized the line in the presence of Konwinski and Jacobson. However,
in an affidavit, Konwinski denied he was present. Konwinski also stated
in his affidavit, “I had asked Buford Peterson to tell when the power
would be turned on but I was not told by him before November 13, 2006,
that it was on.”
It is undisputed that both Little Sioux’s and OSHA’s safety
regulations required employees to deenergize and lock out or tag
electrical equipment before beginning work. These rules required the
employee to assume all electrical equipment was energized until proven
otherwise. The lockout/tag procedures were not followed by the Little
Sioux employees the day McCormick was injured.
After being assigned to remove, drill out, and install the brackets,
Jacobson used the penta-head socket wrench to open two of the
switchgear cabinets so the brackets could be removed and the holes
redrilled. However, when Jacobson was called away to help with another
project at the plant, he left McCormick and Sangwin to complete the
work. Neither McCormick nor Sangwin had prior electrical training.
McCormick used the wrench to open the cabinet door to Switchgear #4.
After removing the bracket and redrilling the holes, McCormick received
a severe electrical shock when he tried to reinstall the bracket in the
cabinet. He survived but sustained substantial injuries.
5
McCormick and his spouse sued Nikkel, alleging it had control of
the switchgear box and failed to warn him the switchgear was energized.
Nikkel moved for summary judgment on the grounds that it owed no
duty to McCormick because it did not have control of the switchgear box
when McCormick was injured. Nikkel argued the relevant duties rested
with Little Sioux, which owned and controlled the switchgear box and
controlled the work being performed by McCormick at the time of the
accident.
The district court granted Nikkel’s motion for summary judgment.
It agreed with Nikkel that it owed no duty to McCormick because Nikkel
did not have control of the switchgear box when McCormick performed
work on it and was injured. The court found, rather, that Little Sioux
had retained control over the electrical work that caused McCormick’s
injury. As the court put it, “[T]he controlling issue is control of the
premises.” The court also concluded that whether Petersen warned
anyone the switchgear was energized was not a material fact because
“Little Sioux had a duty to provide a safe workplace to Troy McCormick,
which includes testing electrical equipment to see if it is energized, in
accordance with OSHA and Little Sioux policy.”
McCormick appealed, and the court of appeals reversed the district
court’s grant of summary judgment. It reasoned that Nikkel was in
control “when the alleged negligent act occurred,” i.e., when Peterson
energized the line prior to McCormick’s injury.
Nikkel sought, and we granted, further review.
II. Standard of Review.
We review a trial court’s grant of summary judgment for
correction of errors at law. On motion for summary
judgment, the court must: (1) view the facts in the light most
favorable to the nonmoving party, and (2) consider on behalf
6
of the nonmoving party every legitimate inference reasonably
deduced from the record. Summary judgment is appropriate
if “there is no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of law.”
The existence of a legal duty is a question of law for the court
to decide.
Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 692–93 (2009)
(citations omitted).
III. Analysis.
A. Duty and the Control Principle. An actionable negligence
claim requires “the existence of a duty to conform to a standard of
conduct to protect others, a failure to conform to that standard,
proximate cause, and damages.” Thompson v. Kaczinski, 774 N.W.2d
829, 834 (Iowa 2009) (citation and internal quotation marks omitted).
“Whether a duty arises out of a given relationship is a matter of law for
the court’s determination.” Id.
Historically, the duty determination focused on three factors: the
relationship between the parties, the foreseeability of harm, and public
policy. Id. at 834. In Thompson, we said that foreseeability should not
enter into the duty calculus but should be considered only in
determining whether the defendant was negligent. Id. at 835. But we
did not erase the remaining law of duty; rather, we reaffirmed it. Id. at
834–36. In short, a lack of duty may be found if either the relationship
between the parties or public considerations warrants such a conclusion.
In Van Fossen, we made clear again that our previous law of duty
was otherwise still alive and well. Thus, we held that employers of
independent contractors do not owe a general duty of due care under
Restatement (Third) of Torts section 7, but owe only a limited duty as
described in Restatement (Second) of Torts section 413. Id. at 696–97.
We reiterated that “[u]nder the retained control standard, one who
7
employs an independent contractor is not liable unless he retains control
of the contractor’s day-to-day operations.” Id. at 697. Van Fossen thus
illustrated one example where the relationship between the parties
resulted in no general duty of reasonable care. As we explained,
The limited nature of the duty owed by employers of
independent contractors takes into account the realities of
the relationship between employers and their contractors.
One of these realities is that employers often have limited, if
any, control over the work performed by their contractors.
Employers typically hire contractors to perform services
beyond the employers’ knowledge, expertise, and ability. The
contractors’ knowledge and expertise places them in the best
position to understand the nature of the work, the risks to
which workers will be exposed in the course of performing
the work, and the precautions best calculated to manage
those risks. These realities dictate that the persons in the
best position to take precautions to manage the risks are the
contractors. The policy of the law therefore justifies the rule
placing the primary responsibility on the contractor for
assuring proper precautions will be taken to manage risks
arising in the course of the performance of the work. The
same realities justify the well-established rules limiting the
liability of employers of independent contractors to the
circumstances specified in Restatement (Second) sections
413, 416, and 427. If liability were not limited in this
fashion, inefficiencies would result as employers would be
required to develop the knowledge and expertise in their
contractors’ fields so as to be prepared to understand even
the ordinary risks involved in the work and assure that the
precautions necessary to manage those risks are taken.
Id. at 698.
This law is of long standing in Iowa. For example, in Robinson v.
Poured Walls of Iowa, Inc., 553 N.W.2d 873, 874 (1996), a worker was
injured while excavating a clogged sewer pipe that had been installed by
the defendant. The defendant had hired the plaintiff’s firm to do the
repair work when the sewer line malfunctioned. Id. We affirmed the
grant of the defendant’s motion for summary judgment based on absence
of duty, reasoning that the plaintiff’s employer, not the defendant
contractor, had control over the work. Id. at 875–76; see also Hoffnagle
8
v. McDonald’s Corp., 522 N.W.2d 808, 813 (1994) (holding that “[w]hether
a franchisor owes a duty of care to its franchisee’s employee . . . turns on
the extent of the franchisor’s retained control over the property and the
daily operation of the restaurant”); Downs v. A & H Constr., Ltd., 481
N.W.2d 520, 523–25 (Iowa 1992) (finding that a contractor owed no duty
to the employee of a subcontractor who was injured by allegedly unsafe
scaffolding because although the employer provided some of the
materials for the scaffolding, the subcontractor controlled how the
scaffolding was erected).
In Van Essen v. McCormick Enterprises Co., we held a landlord that
had installed a grain bin, but no longer controlled it, owed no duty to an
employee of the lessee who was subsequently injured due to the allegedly
hazardous condition of the bin. 599 N.W.2d 716, 720 (Iowa 1999).
Although that case specifically involved the duties of an owner/lessor, we
emphasized using italics, “ ‘The general rule and exceptions . . . reveal a
common principle: liability is premised upon control.’ ” Id. at 720 n.3
(quoting Allison by Fox v. Page, 545 N.W.2d 281, 283 (Iowa 1996)
(emphasis added)). We noted “ ‘the general rule that one who has
transferred ownership and control is no longer held liable.’ ” Id. at 721
(quoting Stalter by Stalter v. Iowa Res., Inc., 468 N.W.2d 796, 798 (Iowa
1991)).
This case is essentially the flip side of the control principle we have
recognized in the foregoing cases. When Nikkel left the work site
approximately a week before the accident, the switchgear was locked up
and in a safe condition. Little Sioux, not Nikkel, had exclusive access to
and control over this equipment. Just as the contractor is typically in a
better position to manage risks when it is in control, the employer is
typically in a better position to manage risks when the contractor left the
9
site a week ago and the employer is now in control. We believe the
reasoning in Van Fossen leads inexorably to the district court’s finding of
no duty in this case.2 If one who has transferred ownership and control
is no longer held liable, as in Van Essen, it follows logically that one who
transferred control and never had ownership also should not be liable.
Application of the control principle makes sense here from a public
policy perspective. Consider the implications of a contrary rule that a
party has created a nondelegable risk of harm if the electricity is on when
it leaves the premises. No matter that the accident occurred a week
later, or that the facility could not operate without electricity, or that the
owner was fully aware of the relevant risks, or that the equipment had
been locked up. To avoid potential liability, various parties (owners,
landlords, repairpersons, etc.) would need to turn off utilities that involve
any risk of hazard (e.g., gas, electricity) whenever they leave a property.
These unnecessary shutoffs would result in burdens and inconveniences
to businesses and the general public.
Courts in other states have repeatedly found that in the absence of
actual control, a property owner owes no duty to a contractor or a
contractor’s employee who suffers injury from being electrocuted on the
property owner’s premises. Merritt v. Bethlehem Steel Corp., 875 F.2d
603, 605–07 (7th Cir. 1989) (rejecting the claim of a contractor’s
employee that the premises owner had a duty to deenergize the lines
where the contractor worked); Wells v. Gen. Elec. Co., 807 F. Supp. 1202,
1211 (D. Md. 1992) (finding an employer owed no duty to a contractor’s
2The fact that a nonemployee spouse was the plaintiff in Van Fossen added
another degree of remoteness to the claim. 777 N.W.2d at 692. But as the above
quotations demonstrate, our reaffirmation of the “retained control standard” and our
discussion of the duties of employers of independent contractors were stated in broad
terms. The reasoning in Van Fossen applies here.
10
employee in the absence of “latent or concealed dangers” or “actual
physical control over the work area”); Jackson v. Petit Jean Elec. Co-op.,
606 S.W.2d 66, 68 (Ark. 1980) (finding a utility had no duty to deenergize
its lines or warn an electrical contractor of “obvious hazards which are
an integral part of the work the contractor was hired to perform”); Durbin
v. Culberson Cnty., 132 S.W.3d 650, 660–61 (Tex. Ct. App. 2004) (finding
that the defendant owed no duty to a contractor who was electrocuted
while changing out light bulbs on an energized pole, despite the
contractor’s argument that the defendant should have provided locked
down switches); cf. Groover v. Camp Dresser & McKee Inc., 420 F. App’x
358, 362 (5th Cir. 2011) (holding that a general contractor owed no duty
to an employee of a subcontractor to warn of dangers of electrocution);
Edick v. Paul de Lima Co., Inc., 775 N.Y.S.2d 385, 386 (App. Div. 2004)
(holding a company that serviced a coffee maker owed no duty to an
employee who received an electric shock while attempting to clean the
coffee maker).
As we noted above, this case is basically the other side of the same
coin. The undisputed facts are that Nikkel was hired as a subcontractor
to do some work on the switchgears. When the project got to a certain
point, Little Sioux decided it would perform the next phase of the work
itself instead of paying Nikkel to do it. So, Nikkel closed and secured the
cabinets with penta-head bolts that could only be opened by a penta-
head wrench in the possession of Little Sioux. In functional terms,
Nikkel contracted the job back to Little Sioux, left the premises, and
transferred control to Little Sioux. Like the district court, we do not see
a material difference between “the employee of an independent contractor
suing the owner, rather than an employee of the owner suing the
independent contractor as in this case.” The duty principles are the
11
same whether the employer turns the job over to the contractor who has
actual control or the contractor turns the job back over to the employer
who has actual control. 3
The control rule persists under the Restatement (Third) of Torts, as
we recognized in Van Fossen. Section 7(a) states, “An actor ordinarily
has a duty to exercise reasonable care when the actor’s conduct creates a
risk of physical harm.” Restatement (Third) of Torts § 7(a), at 77 (2010).
But this is also subject to “an articulated countervailing principle or
policy,” such as the control rule. Id. § 7(b); see also id. § 7 cmt. a, at 78
(stating that “[t]he principle or policy that is the basis for modifying or
eliminating the ordinary duty of care contained in § 7(a) may be reflected
in longstanding precedent”). 4 The reason is simple: The party in control
of the work site is best positioned to take precautions to identify risks
and take measures to improve safety.
This is entirely consistent with Iowa’s common law. Simply put,
the cases involving parties that turn over control of premises to another
party are “a category of cases” where “an articulated countervailing
principle or policy” applies. See Thompson, 774 N.W.2d at 835. 5
3Again, why should it make a difference whether the landowner turns over an
energized line to a contractor or a contractor turns over an energized line to a
landowner? See Merritt, 875 F.2d at 605–07; Wells, 807 F. Supp. at 1211; Jackson, 606
S.W.2d at 68; Durbin, 132 S.W.3d at 660–61. The control principle is the same.
4To put it another way, Nikkel did not create a “risk of physical harm” giving rise
to a general duty under section 7(a) simply by energizing the line that it left locked
securely to prevent unauthorized access. The risk arose only when Little Sioux used
the penta-head wrench to gain access to the switchgear and allowed an untrained
worker (McCormick) to work on it without first turning the power off.
5Of course, review of specific facts may be necessary to determine that there has
been a complete transfer of control and that the claim does not involve defective work
performed by the contractor. Nonetheless, we are still dealing with a “category of
cases.” Thompson, 774 N.W.2d at 835.
12
The court of appeals relied on Thompson v. Burke Engineering
Sales Co., 252 Iowa 146, 106 N.W.2d 351 (1960), in finding that Nikkel
owed a duty in this case. However, in Burke Engineering, the defendant
installed a defective metal ceiling that later collapsed. 252 Iowa at 148,
106 N.W.2d at 352–53. The problem there was a defective product
supplied by the defendant, where the defect was latent. Id. If
McCormick had been injured because Nikkel performed defective work
inside the switchgear cabinets, that might be a Burke Engineering-type
case. But the problem here was not defective work, it was an inherent
hazard associated with an instrumentality no longer under the
defendant’s control.
The same observation applies to Kragel v. Wal-Mart Stores, Inc.,
537 N.W.2d 699 (Iowa 1995). This too was a “bad work” case. A snow
removal contractor did a poor job of removing wet snow from a parking
lot, leaving a layer of packed snow and ice behind. Kragel, 537 N.W.2d
at 701–02. The plaintiff fell and sustained a fractured hip and a
fractured elbow. Id. at 701. We held “[a] failed attempt to remove snow
and ice can create an artificial condition subjecting the one who created
the condition to liability.” Id. at 707. We emphasized “the evidence was
that [the contractor] affirmatively altered the slushy snow.” Id. In any
event, Kragel did not involve a transfer of control. See generally id.
A key distinction between Burke Engineering and Kragel, on the
one hand, and this case, on the other, is that there was nothing wrong
with the contractor’s (Nikkel’s) work. The only duty allegedly breached
by Nikkel was a duty to warn. The duty to warn is especially susceptible
to the control principle. When a party performs defective work, the
negligence occurs at the time of performance, and the party that
performed the work normally is in the best position to have prevented the
13
accident; when the allegation is a failure to warn, though, that failure
(like any “failure”) occurs over a period of time, and other parties may be
in a better position to warn for multiple reasons. Therefore, we recognize
various “no duty” rules in the warning area based on principles
analogous to the lack of control. See, e.g., Restatement (Third) of Torts:
Prods. Liab. § 5, at 130 (1998) (limiting the liability of raw material or
component suppliers and requiring proof that the raw material or
component was defective in itself); id. § 6(d) & cmt. e, at 145, 148 (1998)
(learned intermediary rule). For the foregoing reasons, we conclude that
the control principle means Nikkel, the subcontractor, owed no general
duty to McCormick, the employee of the property owner that had
reassumed control of the equipment and the site.
Another way of looking at this case is to say that Nikkel did not
create a “risk of physical harm” giving rise to a general duty under
section 7(a) of the Third Restatement. See Porter v. Iowa Power & Light
Co., 217 N.W.2d 221, 232 (Iowa 1974). There was nothing wrong with
Nikkel’s work; any danger was the result of the inherent risks of active
power lines. See id. at 233 (“We believe the presence near streets of
electric transmission and distribution lines is a matter of common
knowledge and a paving contractor can reasonably be expected to take
precautions against contacting them.”). When Nikkel reenergized the
line, it also locked up the switchgear. The danger arose only when Little
Sioux used the penta-head wrench to gain access to the switchgear and
allowed an untrained worker (McCormick) to work on it without first
turning the power off.
B. “Assumed Duty.” Next, we turn to the question whether
Konwinski’s affidavit changes the case. We believe it does not. Iowa and
other jurisdictions recognize the concept of an “assumed duty.” See
14
Wright v. Brooke Grp. Ltd., 652 N.W.2d 159, 177–78 (Iowa 2002); see also
Restatement (Second) of Torts § 323, at 135 (1965). That is, a duty can
be imposed on a defendant who “undertakes” to render a service to
another. See Wright, 652 N.W.2d at 177–78 (holding that tobacco
companies’ statements that they would report on the results of their
research into the health effects of cigarettes were not an undertaking to
warn customers of those effects). But Nikkel did not undertake to do
anything here. At most, according to Konwinski’s affidavit, it failed to do
what someone else asked it to do. See Wells, 807 F. Supp. at 1209
(finding that General Electric had assumed no duty to disconnect the
electricity to panel boxes given the lack of competent evidence that a GE
employee had made affirmative comments that the boxes were dead).
C. Duty Under Restatement (Second) of Torts Section 384.
Alternatively, McCormick relies in part on section 384 of the Restatement
(Second) of Torts.
One who on behalf of the possessor of land erects a
structure or creates any other condition on the land is
subject to the same liability, and enjoys the same freedom
from liability, as though he were the possessor of the land,
for physical harm caused to others upon and outside of the
land by the dangerous character of the structure or other
condition while the work is in his charge.
Restatement (Second) of Torts § 384, at 289.
Nikkel contends it bears no liability under section 384 because
section 384 only imposes liability on the subcontractor for dangerous
conditions “while the work is in his charge.” We agree. Section 384 is
not an exception to the control principle; it is an application of it. That
section only extends the special duty of the contractor “while the work is
in his charge.” Id. Two of the comments are particularly apt here:
[T]he work entrusted to the servant or contractor may be
such that it necessarily creates a condition which is
15
dangerous unless further steps are taken. In such a case
the servant or contractor may be liable if he leaves the job in
this dangerous condition, unless he has reason to expect
that the necessary steps will be taken. The fact that his
employer has retained charge of taking such steps or has
entrusted them to another contractor is usually sufficient to
warrant the servant or another contractor in assuming that
they will be taken.
Id. § 384 cmt. e, at 290.
The rule stated in this Section applies to determine the
liability of one who is entrusted by the possessor of land with
the erection of a structure or the creation of any other
physical condition on the land, for only such bodily harm as
is caused while he remains in charge and control of the
erection or creation of the structure or condition. It does not
apply to determine his liability for harm caused after his
charge and control of the work and his privilege to be upon
the land for the purpose of accomplishing it is terminated in
any manner. His charge and control is usually terminated
by the possessor’s acceptance of the completed work, but it
may be terminated in a variety of other ways. For example,
the possessor may, in pursuance or in violation of his
contract, take the work out of the hands of the independent
contractor before it is completed or may order a servant to
stop the work entrusted to him. Again, the possessor
himself may be ejected from the land by one who has a
paramount title thereto, or an injunction may prevent the
continuance of the work.
Id. § 384 cmt. g, at 291–92.
Little Sioux had retained for itself the work required to prepare the
brackets to receive the fault indicators, thus eliminating any special duty
that might have been owed by Nikkel when it exercised control of the
switchgears. Id. § 384 cmt. e, at 290. Even if the energized switchgears
were deemed a dangerous condition, Nikkel owed no special duty under
section 384 because it had “reason to expect” Little Sioux employees
would follow mandatory company and OSHA regulations before accessing
the locked cabinet. Id. And under comment g, Nikkel would owe no
special duty to protect against harm caused after its “charge and control
of the work and [its] privilege to be upon the land . . . is terminated in
16
any manner.” Id. § 384 cmt. g, at 291. Little Sioux instructed Nikkel not
to perform the work on the brackets, and Nikkel was unable to complete
its work until the brackets were revised by Little Sioux. Accordingly,
Nikkel’s control of the switchgears terminated until Little Sioux
completed its work on the brackets. On this record, we conclude as a
matter of law the work of repositioning the brackets was not in Nikkel’s
charge, and Nikkel therefore owed no special legal duty to McCormick
under section 384 at the time of his injury.
IV. Conclusion.
For the reasons stated, we affirm the judgment of the district court
holding that Nikkel owed no duty to McCormick in this case.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
Cady, C.J., and Waterman and Zager, JJ., join this opinion.
Hecht, J., files an opinion concurring in part and dissenting in part in
which Wiggins and Appel, JJ., join.
17
#10–1889, McCormick v. Nikkel & Assocs., Inc.
HECHT, Justice (concurring in part and dissenting in part).
While I agree with the majority’s conclusion that Nikkel does not
owe a special duty under the Restatement (Second) of Torts section 384,
the majority’s analysis of the general duty question demonstrates a
fundamental misunderstanding of the distinction between duty and
scope of liability and results in a conflation of the two issues.
The confusion is highlighted in the opening paragraph when the
majority couches the issue as “whether a subcontractor that properly
performs electrical work on a jobsite, then locks up the work and
transfers control to the property owner, owes a duty of care to an
employee of the owner electrocuted six days later when the owner fails to
deenergize the work site in contravention of various warnings and
regulations.” “When liability depends on factors specific to an individual
case, the appropriate analytical rubric is scope of liability.” Restatement
(Third) of Torts: Liab. for Physical and Emotional Harm § 7 cmt. a, at 78
(2010) [hereinafter Restatement (Third)]. In this case, the majority’s
rationale is substantially based on specific facts: that Nikkel had been
absent from the work site for approximately a week before McCormick’s
injury; that Nikkel had locked the switchgear cabinet before leaving; that
a hazard decal was visible on the switchgear cabinet; that Little Sioux
was in control of the property at the time of the injury; and that
McCormick failed to follow safety procedures confirming that the
switchgear was not energized before attempting to work on it. While
these factual considerations are, of course, relevant to the scope of
liability issue, that issue was not raised in the district court or on appeal,
and the majority does not purport to engage in an analysis of the scope
18
of Nikkel’s liability. Rather, the majority relies on these factual, case-
specific details in its duty analysis.
On the other hand, an appropriate duty analysis “depends on
factors applicable to categories of actors or patterns of conduct.” Id. “As
a general rule, our law recognizes that every person owes a duty to
exercise reasonable care to avoid causing injuries to others.” Feld v.
Borkowski, 790 N.W.2d 72, 75 (Iowa 2010). “Thus, in most cases
involving physical harm, courts ‘need not concern themselves with the
existence or content of this ordinary duty,’ but instead may proceed
directly to the elements of liability.” Thompson v. Kaczinski, 774 N.W.2d
829, 834 (Iowa 2009) (quoting Restatement (Third) of Torts: Liab. for
Physical Harm § 7(a), at 90 (Proposed Final Draft No. 1, 2005)). Only in
“exceptional” cases, when the court can promulgate relatively clear,
categorical, bright-line rules of law applicable to a particular class of
cases should the court modify or displace an actor’s general duty of
reasonable care. Id. at 835. The majority’s conclusion that “a
subcontractor that properly performs electrical work on a jobsite, then
locks up the work and transfers control to the property owner [does not
owe] a duty to an employee of the owner electrocuted six days later when
the owner fails to deenergize the work site in contravention of various
warnings and regulations” is not a clear, bright-line rule of law applicable
to a particular class of cases. 6
6The majority’s opinion reasons in part that it would be inefficient or impractical
to impose liability on an electrical contractor who has energized a switchgear cabinet
and locked it before leaving the work site. Fearing “burdens and inconveniences to
businesses and the general public” if contractors are required to turn off utilities posing
a risk of injury before leaving a work site, the majority would excuse contractors from
the general duty of reasonable care under section 7. I am not convinced. Why should
we conclude it would have been burdensome for Nikkel to deenergize the switchgear box
before leaving the work site? Such a course of action would have assured Nikkel that it
created no risk of harm to persons it expected to work on the fault indicator brackets in
the near future. If Little Sioux wished to energize the loop before Nikkel returned to
19
Long before this court adopted the Restatement (Third) formulation
of duty in Thompson v. Kaczinski, it was well established in this
jurisdiction that the duty of contractors to exercise reasonable care does
not evaporate with the completion of the contractor’s work. See Kragel v.
Wal-Mart Stores, Inc., 537 N.W.2d 699, 707 (Iowa 1995) (“Our case law
holds that the independent contractor remains liable even after the
contractor’s employer accepts the work.”) (citing Restatement (Second) of
Torts, § 385 (1965)); Thompson v. Burke Eng’g Sales Co., 252 Iowa 146,
154–55, 106 N.W.2d 351, 356–57 (1960). Despite the majority’s
characterization of the reasoning in Burke Engineering, we made quite
clear the contractor’s duty of care does not derive from possession or
control of land. It is instead a discrete duty arising from the creation of a
risk of injury and extends temporally beyond the completion of the
contractor’s work and the owner’s acceptance of it. Burke Eng’g, 252
Iowa 154–55, 106 N.W.2d at 356–57. 7
This duty of a contractor to exercise reasonable care is not, as the
majority opinion suggests, one that arises only when the contractor does
bad or defective work. The duty arises instead whenever a risk of injury
to others arises from the contractor’s work without regard to whether the
work is performed badly. This principle explains why a motorist owes a
duty of care to others while driving (not just when driving badly), and it
explains why a surgeon owes a duty of care while performing surgery (not
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finish its work, it could do so and take responsibility for any resulting risk. Of course, a
fact finder could determine Nikkel had options other than deenergizing the switchgears
in fulfilling its general duty of reasonable care, such as honoring Konwinski’s request
that he be notified when the switchgears were energized.
7It is apparent that the range of conduct engendering the general duty of care
owed by a contractor is not limited to supplying inherently defective products posing
latent hazards. Kragel, for example, makes clear that the duty is owed by a contractor
who creates a risk of injury to pedestrians when clearing snow and ice from a shopping
center’s parking lot. Kragel, 537 N.W.2d at 707.
20
just when operating badly). The question of whether the driver or the
surgeon has failed to use reasonable care under the circumstances
addresses not whether a duty was owed in the first place, but whether
that duty was breached. The majority’s construct—concluding a
contractor owes a duty of reasonable care only if he performs “defective
work”—seems to make the existence of a duty turn on whether the
contractor failed to exercise reasonable care. This is a novel approach to
tort law. The majority’s finding that Nikkel’s acts or omissions did not
constitute “defective work” is tantamount to a determination that Nikkel
exercised reasonable care, yet it serves as the foundation for the
majority’s conclusion that Nikkel owed McCormick no duty. This is
simply wrong. The existence of Nikkel’s duty turns on whether it created
a risk of injury when it energized the switchgear boxes before leaving the
work site without notifying Konwinski—not on whether it connected the
wires to the switchgears badly.
The well-established duty of care owed by contractors noted in our
decisions in Burke Engineering and Kragel and expressed in Restatement
(Second) of Torts section 385 was carried forward into the Restatement
(Third). The contractor’s general duty of care does not arise as a function
of continuing possession and control of land, for the contractor’s
possession and control generally cease upon completion of the work.
Having relinquished possession and control of the land, the contractor
nonetheless owes the ordinary duty of reasonable care for risks created
by the contractor’s work. 8 A contractor who has completed work and is
8This distinction is crucial to the extent it explains why cases asserting
negligence claims against land owners, Merritt v. Bethlehem Steel Corp., 875 F.2d 603
(7th Cir. 1989), and Wells v. Gen. Elec. Co., 807 F. Supp. 1202 (D. Md. 1992); electric
utilities, Jackson v. Petit Jean Elec. Co-op., 606 S.W.2d 66 (Ark. 1980), and Durbin v.
Culberson Cnty., 132 S.W.3d 650 (Tex. Ct. App. 2004); contractors, Groover v. Camp
Dresser & McKee, Inc., 420 F. App’x 358 (5th Cir. 2011), Robinson v. Poured Walls of
21
no longer in possession of the land is “subject to the ordinary duty for
risks created by their work under § 7.” Restatement (Third) § 49 cmt. g,
at 10 (Tentative Draft No. 6, 2009).
Section 385 of the first two Restatements of Torts provide
that an agent who has completed work that is accepted by
the principal is subject to the same liability as a
manufacturer of a chattel who has given up possession of
the chattel. This oblique way of imposing a duty of
reasonable care on contractors whose work was completed
reflects the waning influence of the privity doctrine, which
limited a contractor’s liability to those with whom the
contractor was in privity of contract. After the privity rule
was left behind beginning with MacPherson v. Buick Motor
Co., 111 N.E. 1050, 1053 (N.Y. 1916), the liability of a
chattel manufacturer extended to others beyond the person
who purchased the chattel. Similar to the privity doctrine,
the “completion and acceptance” doctrine insulated a
contractor who completed construction on real property and
turned the completed work over to the owner. With the
abrogation of privity, that rule was also replaced. . . .
Numerous modern cases accept the rule of § 385.
Restatement (Third) § 49 rep. note to cmt. g, at 17 (Tentative Draft No. 6,
2009).
Thus, this general duty of care extending beyond the completion of
a contractor’s work is clearly not a novel or revolutionary concept of law
in this jurisdiction. It is a rule of law recognized in prior decisions of this
court for more than fifty years, expressed by the Restatement (Second) of
Torts as a principle of established law, and more recently restated in the
Restatement (Third) of Torts.
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Iowa, Inc., 553 N.W.2d 873 (Iowa 1996), and Downs v. A & H Constr., Ltd., 481 N.W.2d
520 (Iowa 1992); a landlord, Van Essen v. McCormick Enters. Co., 599 N.W.2d 716 (Iowa
1999); and a vendor of coffee makers and coffee, Edick v. Paul de Lima Co., Inc., 775
N.Y.S.2d 385 (App. Div. 2004), cited by the majority are neither dispositive of the
general duty issue nor persuasive in this case. None of these cases asserted, as the
McCormicks do in this case, that a subcontractor owed a general duty of care under
section 7 as a consequence of the subcontractor’s own creation of a risk of serious
injury or death at a construction site.
22
Accordingly, even if Nikkel did not owe to McCormick any special
duties as a possessor of land, or as a contractor temporarily in control of
the construction site, it still owed a general duty of reasonable care
under section 7 of the Restatement (Third) because it created a risk of
severe injury or death by energizing the switchgears and failing to notify
Konwinski as requested. The determination of whether this duty of care
was breached by Nikkel and whether McCormick’s injuries were within
the applicable scope of liability are matters of foreseeability to be
determined not by the court on summary judgment, but by a jury. 9 The
majority opinion, emphasizing that the switchgear cabinet was adorned
with a decal warning of the electrical hazard and locked by Peterson
before he left the work site, and that Little Sioux’s employees failed to
follow lock-out/tag procedures on the day of McCormick’s injury,
confounds the duty analysis under section 7 of the Restatement (Third)
with forseeability considerations relevant to the issues of breach of the
general duty and scope of liability. As I have already noted, Nikkel’s
motion for summary judgment claimed entitlement to summary
judgment solely on the duty issue—not on the issues of breach of duty or
scope of liability.
The majority cites this court’s decision in Van Fossen v.
MidAmerican Energy Co., 777 N.W.2d 689 (Iowa 2009), in support of its
position that Nikkel owed no general duty of care to McCormick under
the facts presented in the summary judgment record. In Van Fossen, we
decided the owner of a power plant who was not in possession of a
construction site owed no general duty of care to the wife of an
9Foreseeability of the risk is no longer a part of the duty analysis and is
allocated to the fact finder, “to be considered when the jury decides if the defendant
failed to exercise reasonable care.” Thompson, 774 N.W.2d at 835.
23
independent construction contractor’s employee who was exposed to
asbestos and carried it home on his clothing. Van Fossen, 777 N.W.2d at
696–97. Nikkel argues, and the majority concludes, that the no-duty
rule adopted in Van Fossen was based on the notion that the power plant
owner did not retain control of the construction site and the associated
asbestos exposure risk while the contractor performed its work.
I believe Van Fossen is distinguishable both in terms of the facts
presented and the legal issues decided, and it is neither controlling nor
instructive in the resolution of the duty issue in this case. In Van Fossen
we were asked to decide whether the owner of a power plant owed a duty
of care to the spouse of an employee of a construction subcontractor who
was allegedly exposed to asbestos while laundering her husband’s
clothes at home. Id. at 691. In sharp contrast, the parties in the case
now before the court ask us to decide whether a construction
subcontractor owed a duty of care to an employee of the owner as a
consequence of a risk of severe injury or death created at the construction
site by the subcontractor’s own work. In short, the stark factual
differences in the facts presented in the two cases, the asymmetry of the
roles played by the defendant actors in the construction projects in the
two cases, and the obvious dissimilarities in the respective defendants’
involvement in the creation of the alleged risks of injury in the two cases
lead us to conclude the no-duty rule enunciated in Van Fossen should
have no application in this case.
Beyond the fact that Van Fossen is clearly distinguishable and not
instructive in our resolution of the general duty issue in this case, the
majority misapprehends the reasoning in Van Fossen. Although we
noted that the record in that case was “devoid of evidence tending to
prove [the plant owners] exercised control over [the work of their
24
contractors],” the decision to recognize a no-duty rule was based on “ ‘an
articulated countervailing principle or policy warrant[ing] den[ial of] . . .
liability in a particular class of cases.’ ” Id. at 696 (quoting Restatement
(Third) § 7(b), at 90 (Proposed Final Draft No. 1, 2005)) (emphasis
added). 10 We recognized that our determination of a no-duty rule
reflected the “realities of the relationship between employers and their
contractors [including the reality] that employers often have limited, if
any, control over the work performed by their contractors.” Id. at 698.
However, our decision was also based on the remoteness of the plant
owners from the spouse of an employee of an independent contractor.
Id. at 699. We expressed concern that imposing a general duty of
reasonable care on the employer of a contractor extending to the spouse
of the contractor’s employee under the circumstances presented in Van
Fossen “would arguably also justify a rule extending the duty to a large
universe of other potential plaintiffs who never visited the employers’
premises but came into contact with a contractor’s employee’s asbestos-
tainted clothing [in various other remote settings].” Id. This large
universe of other potential plaintiffs could have included taxi drivers,
employees of dry-cleaning establishments, and others having no
connection whatsoever to the plant-owner’s premises. We concluded
“such a dramatic expansion of liability would be incompatible with public
10Our holding was not merely that MidAmerican owed no duty to Mrs.
Van Fossen, but that “[o]ne who employs an independent contractor owes no general
duty of reasonable care to a member of the household of an employee of the
independent contractor.” Van Fossen, 777 N.W.2d at 696. Mrs. Van Fossen had never
visited the defendant’s construction site. Id. at 699. Our decision in Van Fossen was “a
determination, a purely legal question, that no liability should be imposed on actors in
a category of cases.” Restatement (Third), § 7 cmt. j, at 82 (emphasis added). It was not
an individualized forseeabililty-based determination that no general duty of care was
owed to Mrs. Van Fossen because MidAmerican lacked possession or control of the
construction site.
25
policy.” Id. However, I believe our policy concerns in Van Fossen
militating against the imposition of a duty upon the landowner are not
present in this case. McCormick’s claim for damages is asserted against
a construction subcontractor whose own acts or omissions are alleged to
have created a risk of injury to its employer’s employee at the
construction site. As I have already noted, the existence of the duty of
care owed by subcontractors as a consequence of risks of injury they
create at construction sites is already well established in Iowa law.
Accordingly, I believe this case does not present, as Van Fossen did, an
exceptional situation in which a no-duty rule would be appropriate.
The majority also relies on our decision in Robinson v. Poured
Walls of Iowa, Inc., 553 N.W.2d 873 (Iowa 1996), as authority for its
conclusion that Nikkel owed no general duty to exercise reasonable care
under the circumstances of this case. In that case, Poured Walls of Iowa
hired an independent contractor, Jack Spaw, to excavate a sewer line.
Robinson, 553 N.W.2d at 874. Spaw employed Robinson who was
injured while doing the work. Id. at 874–75. Robinson sued Poured
Walls of Iowa claiming the contractor violated special duties under
Restatement (Second) of Torts sections 343 (duty owed by possessors of
land for injuries sustained by invitees), 413 (duty owed by employer of
independent contractor hired to perform work creating a “peculiar
unreasonable risk of physical harm”), and 427 (duty of employer of
independent contractor hired to perform work “involving a special danger
to others which the employer knows or has reason to know to be
inherent in or normal to the work”). Id. at 875. The plaintiffs in
Robinson did not claim that the contractor, Poured Walls of Iowa, owed a
general duty to exercise reasonable care because it created a risk of
injury to others through its own acts or omissions at the work site. They
26
instead alleged the contractor violated only special duties which were
allocated based on possession and control under the Restatement
(Second) of Torts. Id. Simply put, our decision in Robinson did not
address the general duty of care alleged by the McCormicks and is
therefore not on point. This is also true of the other decisions of this
court cited today by the majority opinion. See Hoffnagle v. McDonald’s
Corp., 522 N.W.2d 808, 815 (Iowa 1994) (franchisor owed no special duty
to provide security against assaults by third parties on franchisee’s
property under Restatement (Second) of Torts sections 344 and 414
because franchisor lacked control); Downs v. A & H Constr., Ltd., 481
N.W.2d 520, 524–27 (Iowa 1992) (contractor owed no special duty to an
employee of a roofing subcontractor under Restatement (Second) sections
328E, 343 and 414 because the contractor did not retain sufficient
control of the subcontractor’s work). Although these precedents are
authority for the proposition that Nikkel owed no special duty to
McCormick under the circumstances presented in this case, they are not
dispositive of the general duty issue under section 7 of the Restatement
(Third) adopted by this court in Thompson.
We should not fear the salutary effect of the general duty of
reasonable care adopted by this court in Thompson. It is a positive force.
I find no articulated countervailing principle or policy that warrants
denying or limiting the liability of electrical contractors as a class of
actors for risks of injury created by their own acts or omissions at a
construction site. Although Nikkel did not control the construction site
or the particular task performed by McCormick at the time of his injury,
the McCormicks contend Nikkel owed a general duty to exercise
27
reasonable care when it energized the switchgears and failed to inform
Konwinski despite having been asked to do so. 11
The majority’s decision today recognizes a no-duty rule for what it
characterizes as “a class of cases” in which a contractor has effected a
complete transfer of control of the premises to another. Acknowledging
that there may be fact questions in certain cases about the extent of the
transfer of control and whether the contractor has performed defective
work, the majority effectively concedes that the existence of a duty will
turn on fact questions in particular cases. On this point, the majority
confuses its duty analysis with the analysis of scope of liability. “When
liability depends on factors specific to an individual case, the appropriate
rubric is scope of liability.” Restatement (Third) § 7 cmt. a, at 78.
Whether Nikkel exercised reasonable care under the circumstances
by locking the cabinet, relying on warnings posted on the cabinet, and
expecting Little Sioux employees to follow mandatory OSHA and
company safety policies, are matters related to foreseeability, breach of
duty, and scope of liability—all issues properly reserved for a jury’s
assessment. Accordingly, I would reverse and remand for trial.
Wiggins and Appel, JJ., join this concurrence in part and dissent
in part.
11As I have already noted, the question of whether the McCormicks engendered a
fact question as to whether Nikkel breached the duty of reasonable care by failing to
give notice to Little Sioux that the switchgears were energized or by failing to take other
action to eliminate the risk of injury was not decided by the district court and is
therefore not a matter before this court on appeal. Similarly, Nikkel’s motion for
summary judgment did not raise the question whether a fact issue is engendered in the
summary judgment record as to whether any injuries sustained by the McCormicks
were within the scope of Nikkel’s liability.