DocketNumber： 890281
Judges： Howe, Stewart, Hall, Durham, Zimmerman
Filed Date： 2/4/1993
Status： Precedential
Modified Date： 10/19/2024
ON CERTIORARI TO THE UTAH COURT OF APPEALS
We granted certiorari in this case to review the court of appeals’ decision reported at 774 P.2d 1154 (Utah Ct.App.1989). In its decision, the court of appeals affirmed a summary judgment that had been granted in favor of defendant Albert Kienke and against plaintiff Daniel English.
Kienke, a full-time employee of the Utah Department of Transportation, owned several rental residential properties in the Salt Lake City area. He did most of the repair work on his properties, although on two or three occasions, he hired independent contractors. Robert English, plaintiff’s son, learned from his mother, a friend of Kienke’s wife, that Kienke might have a house to rent. Kienke showed English a house on Windsor Street in Salt Lake City that was run down and in need of extensive repairs. Since English was recently divorced and his finances were tight, he proposed to Kienke that he would repair and renovate the house in lieu of rent. Kienke accepted. However, the parties reached no formal agreement or understanding as to just how much work English would be required to perform each month. There was no understanding as to which projects would be completed, by what date, or how English’s time would be valued.
English had little experience in construction, while Kienke had significant experience in construction and carpentry. Kienke showed English the areas of the house that needed repair work. English would commence a project on a particular part of the house by informing Kienke of his general plans and ideas, and Kienke would give his agreement. English would then perform the work, apparently without direction or supervision. As materials were needed, English purchased them and Kienke reimbursed him. Kienke visited the house to inspect the work only occasionally. He testified in his deposition that he did not see English for a month or two at a time. For the duration of their relationship, English worked on several different projects throughout the house.
Kienke indicated that the kitchen and back porch were in particular need of repair. He and English also discussed in general terms other areas of the house needing repair, including the front porch. Kienke was aware that a beam in the roof of the front porch was sagging, that the porch ceiling needed repairs, and that the posts supporting the porch had rotted. English agreed to repair the porch, and he and Kienke discussed the work to be done before English commenced the repairs. In performing the work, English usually used
After English had begun work on the porch, he asked Kienke to come to the house and inspect his progress. Kienke found that English had removed the entire bottom part of the porch. English explained to Kienke that he had found that the wood supporting the floor of the porch had rotted and that he had decided to replace the porch. Kienke told English to place two-by-four boards on the sides of the porch to support the roof but did not instruct him on precisely how to proceed. English installed the temporary supports, but two weeks later, while he was working on the porch, the roof collapsed, seriously injuring him. He later died from those injuries.
Daniel English filed this action as personal representative of the estate of Robert English, alleging three claims for relief against Kienke. The first alleged common law negligence. The second was under the Workers’ Compensation Act, specifically Utah Code Ann. § 35-1-45, which authorizes a common law-type action by an employee against an employer who is required by the Act to obtain workers’ compensation insurance coverage but fails to do so. Kienke did not carry any workers’ compensation insurance on English. English’s third claim was a demand for punitive damages, based on the assertion that Kienke had acted with knowing and reckless disregard of the law.
Kienke moved for summary judgment on the grounds that (1) a landlord cannot be held liable for injuries to a tenant which result from a hazardous condition created by the tenant, and (2) Kienke was not liable under section 35-1-45 because English was an independent contractor, not Kienke’s employee. On plaintiff’s first claim for relief, the trial court held that English was solely negligent as a matter of law and, on the second claim, held that English was an independent contractor, not an employee. Accordingly, the trial court entered summary judgment in favor of Kienke.
The court of appeals, relying on Stephenson v. Warner, 581 P.2d 567 (Utah 1978), and the Restatement (Second) of Torts § 355 (1965), held that a landlord is not liable for an injury caused by a dangerous condition created by a tenant and that because English created the dangerous condition that caused his death, he alone was negligent as a matter of law. English, 774 P.2d at 1157. The court also ruled that it was unnecessary to address the issue of whether English was Kienke’s employee for purposes of the Workers’ Compensation Act, because even assuming English was an employee under the Act, he could not recover in light of the court’s conclusion that English was solely negligent. Id.
Plaintiff now contends that the court of appeals erred in not imposing upon defendant, by virtue of his status as a landlord and a landowner, and because of his superi- or knowledge of construction practices, the duty to apprise English of the gravity of the risk and to instruct him adequately how to eliminate that risk. Additionally, plaintiff asserts that the court of appeals erred in not concluding that English was an employee under the Workers’ Compensation Act.
I. DUTY OF CARE
The court of appeals acknowledged that Williams v. Melby, 699 P.2d 723 (Utah 1985), modified the common law duty of care landlords owe to tenants with respect to hazardous conditions on leased premises. In Williams, we reviewed the development of the law, beginning with the early common law rule that a landlord was not liable to a lessee for physical harm caused by a dangerous condition on the land when the tenant took possession. We noted that with time, the general rule was modified to make landlords liable under certain circumstances for injuries resulting from dangerous conditions on leased premises. We specifically outlined four instances in which landlords could be held liable for hazardous conditions: (1) if the landlord had contracted to repair the premises; (2) if there was a hidden or latently dangerous condition which was known to the landlord and caused an injury; (3) if the premises were
Plaintiff, however, asserts that Kienke owed English a duty not only as his landlord, but also as a possessor of land upon which English came to work. In this regard, plaintiff relies-upon the Restatement (Second) of Torts § 343, which states:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
For the purposes of our analysis here, we will assume that Kienke was a “possessor” of land, although under section 328E of the Restatement, a possessor is one in actual physical possession. See id. § 328E. Kienke did not live on the property; it was a vacant rental unit in need of repairs and renovation. Kienke visited the premises only occasionally.
English was an invitee within the meaning of section 343. Section 332, comment “e” lists “a workman who comes to make alterations or repairs on land used for residence purposes” as an example of an invitee. This type of an invitee is called a “business visitor” by the Restatement because he or she “is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Id. § 332(3).
Sections 343 and 343A of the Restatement impose on a possessor of land the duty to warn an invitee about two general types of hazards: (1) those that are present on the land when the invitee enters which the possessor should expect the invitee will not discover or realize, and (2) those that the possessor creates after the invitee’s entry, such as in In re Wimmer’s Estate, 111 Utah 444, 182 P.2d 119 (1947). Neither type is present here. English was an invitee (business visitor) who was engaged to make extensive repairs on the house. In so doing, he created the hazard which led to his death. There is no basis to impose on Kienke under section 343 or 343A the duty to protect English from the hazard English created when Kienke did not live on the property, had not been there for two weeks, and did not supervise or exercise control over English’s work.
The dissenting opinion erroneously finds that Kienke has a duty, relying upon Shaffer v. Mays, 140 Ill.App.3d 779, 95 Ill.Dec. 83, 489 N.E.2d 35 (1986), and Haberer v. Village of Sauget, 158 Ill.App.3d 313, 110 Ill.Dec. 628, 511 N.E.2d 805 (1987). Those cases are distinguishable because in each of them, the owner retained either full or partial control over the work performed by the invitee. For that reason, the Haberer court relied upon the Restatement (Second) of Torts section 414, not section 343 or 343A. In Shaffer, the invitee was gratu-
A limitation on the liability imposed by sections 343 and 343A was recognized in Donovan v. General Motors, 762 F.2d 701 (8th Cir.1985), in which plaintiff Donovan was an employee of an independent contractor who was constructing an addition to a General Motors plant. Donovan was injured in a fall while working on the unfinished roof of the addition when a plywood panel gave way under him. The court determined that section 343 of the Restatement did not apply:
In this case Donovan fell from a roof under construction by the independent contractor. None of the evidence suggests that Donovan’s fall had anything to do with the condition of GM’s premises before the independent contractor came on those premises. Therefore, we find the safe workplace doctrine derived from Restatement § 343 to be inapposite here. The damage alleged here did not arise out of any failure by GM to provide a safe workplace but out of the manner in which the work was done by the independent contractor.
Id. at 704. While it is unnecessary here to determine whether English was an independent contractor, the duty owed to any classification of an invitee is the same under sections 343 and 343A and does not extend to a hazard created by the invitee.
The fact that Kienke may have had superior knowledge of construction practices and skills is immaterial. This diversity of experience does not affect a possessor’s legal duty. Kienke did more than the law required when he warned English to adequately support the roof. See Hunt v. Jefferson Arms Apartment Co., 679 S.W.2d 875, 882 (Mo.Ct.App.1984) (holding that a warning to a construction supervisor about an open elevator shaft satisfied any duty an owner owed to. his contractor).
II. ENGLISH WAS NOT AN EMPLOYEE
The trial court ruled that English was an independent contractor, not an employee under the Workers’ Compensation Act, and therefore, the provisions of that Act did not apply. The court of appeals did not decide whether English was an employee or an independent contractor because it concluded that English was solely negligent in causing his own death, and plaintiff could not recover under the Act in those circumstances. However, because Utah Code Ann. § 35-1-57 provides that proof of injury shall constitute prima facie evidence of negligence on the part of an uninsured employer and that the burden shall be upon the employer to show freedom from negligence resulting in such injury, we shall address the question of whether English was an employee.
In Harry L. Young & Sons v. Ashton, 538 P.2d 316 (Utah 1975), this court explained the difference between an employee and an independent contractor for the purpose of determining coverage of the Act:
Speaking in generality: an employee is one who is hired and paid a salary, a wage, or at a fixed rate, to perform the employer’s work as directed by the employer and who is subject to a comparatively high degree of control in performing those duties. In contrast, an independent contractor is one who is engaged to do some particular project or piece of work, usually for a set total sum, who may do the job in his [or her] own way, subject to only minimal restriction or controls and is responsible only for its satisfactory completion.
The main facts to be considered as bearing on the relationship here are: (1) whatever covenants or agreements exist concerning the right of direction and control over the employee, whether express or implied; (2) the right to hire and fire; (3) the method of payment, i.e., whether in wages or fees, as compared to payment for a complete job or project; and (4) the furnishing of the equipment.
Id. at 318 (footnote omitted).
Here, there was no agreement as to Kienke’s right to direct or control English’s
English received no payment of wages or fees in the usual sense. Although the amount of the rent could be ascertained, there was no agreement as to the value to accord English’s labor. English was not paid on a project basis, and there was no agreement as to how many hours of labor he would perform each week or month. Furthermore, English primarily used his own tools. Kienke provided only a power saw, a shovel, a roof jack, and a tub for mixing cement. English purchased most of the materials directly, although he was reimbursed for them.
The undefined nature of the compensation arrangement and the wide discretion allowed English in choosing projects and the manner in which he would proceed, including when and how long he would work, lead us to conclude that English was not an employee for purposes of the Workers’ Compensation Act. See Graham v. R. Thorne Found,., 675 P.2d 1196 (Utah 1984).
Plaintiff contends that at the very minimum, Kienke was a statutory employer as defined by section 35-1-42(2). He relies upon our decision in Bennett v. Industrial Commission, 726 P.2d 427 (Utah 1986), where we pointed out that our statutory employer provision is a legislatively created scheme by which conceded nonem-ployees are deliberately brought within the coverage of the Workers’ Compensation Act. However, in that case the issue was whether a contractor was liable for injuries to an employee of a subcontractor. Under the statutory scheme, such an individual is sometimes deemed a statutory employee of the contractor. That is simply not the case here.
The decision of the court of appeals is affirmed.
. The court of appeals misread Williams v. Mel-by, stating that this court was abandoning the common law duty analysis based on whether a plaintiff was an invitee, a licensee, or a trespasser. Williams dealt only with landlord/tenant law and did not deal with the duty of due care owed to invitees, licensees, or trespassers. We have recently stated that the duty of care owed by a possessor of land is determined by the status of the person who comes onto the property. See Pratt v. Mitchell Hollow Irr. Co., 813 P.2d 1169, 1172 (Utah 1991).