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RAUSE v. PAPERCHINE, INC. (D.Ariz. 9-30-2010)
PER CURIAM.
AND NOW, this 30th day of September, 2010, the Emergency Notice of Appeal, treated as a Petition for Review, is DENIED.
Abitibi retained the power to demand that Paperchine replace any employee or subcontractor's employee that Abitibi believed was not working safely, and could have stopped the project at any time for safety rule violations (Doc. 233, Ex. A, McKee Dep., 36:6-37:18, 38:15-39:17, 49:11-50:22, 73:5-16). Indeed, Abitibi shut down the entire mill when the subject accident occurred (Doc. 136, Ex. D, Voss Dep., 265:14-266:2).
However, Abitibi did not supervise Paperchine or Enerquin employees on a day-to-day basis or control the work that they did on the project (Doc. 151, Ex. 2, Voss Dep., 286:22-287:6, Doc. 231, Ex. 1, Mendoza, Sr. Dep., 93:23-94:1). Abitibi never gave specific directives to Paperchine or Enerquin regarding their job duties (Doc. 136, Ex. C, Tierney Dep., 144:12-16). Furthermore, Abitibi never advised Paperchine or Enerquin as to which employees should perform certain construction tasks (Doc. 151, Ex. 1, Kreizenbeck Aff. ¶ 4). Rather, Abitibi allowed Paperchine and its subcontractors such as Enerquin to complete the work in the manner that they believed would accomplish the project vision, provided that the mill's safety standards were followed (Id. at ¶ 5). Any questions regarding how to perform the work were not directed to Abitibi; instead Abitibi merely ensured that the project remained on schedule (Id. at ¶¶ 6-7). Abitibi did not request Enerquin to remove the false ceiling panels, or ask for any specific work to be done (Doc. 231, Ex. 1, Mendoza, Sr. Dep., 93:12-22).
Based upon the evidence presented, the Court finds that a question of fact exists whether Abitibi exercised actual control over Paperchine's work to impose liability under Restatement § 414. There was evidence that Abitibi had supervisors walking around the mill engaged in safety inspections (Doc. 136, Ex. C, Tierney Dep., 103:11-21, 143:23-144:7, 144:17-22; Ex. D, Voss Dep., 171:5-11, 177:23-178:8; Doc. 202, Ex. F, Lovaas Dep., 39:3-40:15, 46:13-23), and that Abitibi supervisors had an obligation to correct any unsafe practices they observed (Doc. 233, Ex. A, McKee Dep., 26:17-28:8, 58:24-60:1, 64:23-65:3, 71:20-72:16, 73:17-74:1). Furthermore, Abitibi had the power to stop the project for safety violations (Id. at 36:6-37:18, 38:15-39:17, 49:11-50:22, 73:5-16). Despite this evidence, there also was other evidence that Abitibi did not make decisions regarding who should do the work, how it should be done, or when it should be done (Doc. 151, Ex. 2, Voss Dep., 286:22-287:6, Doc. 231, Ex. 1, Mendoza, Sr. Dep., 93:23-94:1). Abitibi only ensured that the project stayed on schedule and kept track of its progress (Doc. 151, Ex. 1, Kreizenbeck Aff). Thus, summary judgment will be denied to both parties.
D. Sufficiency of the Evidence as to Paperchine
1. Contractual Responsibility
The first relevant factor for finding retained control is whether Paperchine contractually assumed affirmative duties with respect to safety at the job site where decedent Johnny Mendoza, Jr. was killed. To demonstrate retained control, Plaintiff points to Abitibi's General Terms and Conditions which state that a contractor is "responsible for obtaining the regulations, policies and requirements of [Abitibi] in matters of . . . safety" and must ensure that its employees and the employees of its subcontractors comply with these regulations (Doc. 153, Ex. 14, Abitibi General Terms and Conditions ¶ 20.0). Furthermore, in Abitibi's Contractor's Rules, the contractor is responsible for ensuring that its own employees, as well as those of any subcontractors, comply with all safety rules (Doc. 136, Ex. G, Contractor's Rules, pp. 7, 9). The Contractor's Rules also require Paperchine to supply safety equipment and training to its own employees and to ensure that its subcontractors did the same (Id. at pp. 10, 11, 17). In response, Paperchine argues that Abitibi's provisions require any contractor operating on the premises, whether Paperchine or Enerquin, to do the following: (1) comply with Abitibi's rules; (2) exercise responsibility for its own personnel; (3) have safety rules that meet or exceed Abitibi's; (4) reinforce the contractor/subcontractor's own safety rules; and (5) provide safety equipment and training to its own employees (DPSSOF ¶¶ C-F).
The Court finds that a question of fact exists as to whether Paperchine contractually assumed responsibility for Enerquin and Johnny Mendoza, Sr.'s safety. In Abitibi's General Terms and Conditions, a contractor is given responsibility for ensuring that the contractor's employees and subcontractor's employees comply with Abitibi's safety rules. However, in Abitibi's Contractor's Rules, it states that "the contractor's supervision is responsible for reinforcement of their safety rules." (Doc. 136, Ex. G, Contractor's Rules, p. 9) The language refers only to "the contractor" and does not specify whether the "contractor" is Paperchine, or all contractors, including subcontractors. Thus, it is unclear whether Paperchine assumed an affirmative duty as to subcontractor's employees, or whether Enerquin has responsibility for its own employees.
2. Actual Exercise
In addition to contractual responsibilities, a general contractor's actual exercise of control over a subcontractor's work is a relevant consideration in deciding whether Paperchine retained sufficient control over Enerquin, and thus, Johnny Mendoza, Jr.'s work. Lewis, 170 Ariz. at 390, 825 P.2d at 11.
Plaintiff points to deposition testimony by Paperchine's project manager, Micky Tierney, and its safety representative, Gail Voss, where both admit that Paperchine was responsible for assuring a safe work place, and enforcing safety rules and regulations for its own employees and its subcontractor (Doc. 136, Ex. C, Tierney Dep., 51:9-53:7, 54:18-55:7, 76:15-77:8, 101:24-102:23; Ex. D, Voss Dep., 22:22-23:9, 75:4-9, 117:8-18). This responsibility included ensuring that its subcontractors, including Enerquin, had appropriate safety policies and training (Doc. 136, Ex. D, Voss Dep., 38:13-39:5). Additionally, Paperchine had the ability to stop any
Enerquin employee and demand compliance with safety rules at any point (Doc. 136, Ex. C, Tierney Dep., 50:13-51:8, 54:18-55:7, 101:24-102:23, 139:1-22; Ex. D, Voss Dep., 74:1-75:3, 83:1-84:4, 103:20-104:5). Moreover, Paperchine had safety inspectors at the job site observing the work done at the mill and making sure that safe practices were followed by Paperchine employees and subcontractors (Doc. 153, Ex. 1, Voss Dep., 177:16-178:8; Doc. 202, Ex. E, Morris Dep., 29:10-16).
On the other hand, Paperchine relies upon controverting facts that Paperchine did not exercise actual control over Enerquin's (and Johnny Mendoza, Jr.'s) work in removing the false ceiling panels. First, Enerquin contracted to have its own supervisors monitor the work and safety of Enerquin's employees (Doc. 136, Ex. D, Voss Dep., 72:12-73:4, 73:24-25, 112:2-5, 115:7-12). Indeed, Paperchine paid Enerquin to have a supervisor present to conduct supervisory activities with Enerquin's employees (Id. at 112:2-5). While Paperchine had an obligation to ensure that the work was performed safely, the decision of how to perform the work was left to Enerquin (Id. at 91:10-19). Paperchine had no discussions with Enerquin about how Enerquin would remove the false ceiling panels or install the dryer hood, but entrusted those decisions to Enerquin (Doc. 153, Ex. 6, Tierney Dep., 55:25-56:7).
Additionally, Paperchine relied on Enerquin to ensure that Enerquin's employees completed the work safely (Doc. 136, Ex. D, Voss Dep., 91:10-19). Enerquin provided safety equipment to its employees, and trained its employees how to use the equipment safely (Doc. 200, Ex. 1, Young Dep., 54:23-55:11). Enerquin held its own safety meetings (Doc. 153, Exhibit 1, Voss Dep., 108:2).
While Paperchine did request that Enerquin remove two (2) additional false ceiling panels, it left the timing, method, and manner of removal up to Enerquin (Doc. 153, Ex. 6, Tierney Dep., 93-96). Paperchine did not direct Enerquin employees how to remove or handle the additional false ceiling panels, and was not involved in deciding which employees would move the panels (Doc. 200, Ex. 1, Young Dep., 49:2-12; Ex. 3, Scullion Dep., 29:19-30:1).
Enerquin's on-site supervisor, Johnny Mendoza, Sr., was responsible for selecting Enerquin employees with sufficient knowledge and experience to complete the work safely (Doc. 200, Ex. 1, Young Dep., 36:1-9). He also was responsible for explaining to the Enerquin employees he selected how to perform a particular task and confirming the safest way to perform the work (Id. at 35:14-25, 36:6-9). Paperchine did not tell Johnny Mendoza, Sr. who they wanted to perform the work, how many people to assign to the work, or how the work was to be completed (Doc. 232, Ex. 1, Mendoza, Sr. Dep., 21:21-22:9).
After examining the evidence presented by Plaintiff and Paperchine, the issue of whether Paperchine exercised actual control over Enerquin's work to impose liability under Restatement § 414 is dependent upon a consideration of the relevant facts — thereby rendering it inappropriate to grant summary judgment for either party. See Lewis, 170 Ariz. at 389, 825 P.2d at 10 (holding that the question of whether the general contractor retained sufficient control over the independent contractor's work as to be liable under § 414 was a factual question for the jury, noting ". . . [w]e believe that the issue of retained control is also a question of fact which ordinarily should be left to the fact finder."). Plaintiff draws upon statements made by Gail Voss and Micky Tierney where they admit that Paperchine supervised Enerquin's work with respect to safety (Doc. 136, Ex. C, Tierney Dep., 51:9-53:7, 54:18-55:7, 76:15-77:8, 101:24-102:23; Ex. D, Voss Dep., 22:22-23:9, 75:4-9, 117:8-18). However, in other places the supervisors state that Enerquin exercised safety responsibility for its own employees (Doc. 136, Ex. D, Voss Dep., 72:12-73:4, 73:24-25, 112:2-5, 115:7-12). Accordingly, it appears that there is a material issue of fact in making this determination. Furthermore, while Paperchine asked Enerquin to remove the two additional false ceiling panels to accommodate the crane, it did not control the timing or method of removal (Doc. 153, Ex. 6, Tierney Dep., 93-96).
IV. Contractual Statutory Responsibility
Plaintiff argues that non-delegable duties may be imposed by statute, common law, or contract. A non-delegable duty to assure safety at the worksite is often imposed based upon the contractual assumption of responsibility for safety by a general contractor. Plaintiff contends that Paperchine assumed contractual obligations for worker safety, including providing fall protection training, equipment, and supervision, and enforcing compliance with OSHA and ADOSH regulations. These duties were non-delegable. Additionally, Plaintiff contends that Paperchine had non-delegable regulatory duties under OSHA and ADOSH. Plaintiff relies upon Restatement § 424 in claiming that Paperchine was required by federal and state regulation to provide a safe workplace, including fall protection, for all employees, including Johnny Mendoza, Jr. According to Plaintiff, OSHA part 1926.16(a) provides that the duty of a general contractor to comply with OSHA and ensure safety at the worksite is non-delegable. Thus, Paperchine is vicariously liable for Enerquin's failure to comply with these duties.
In response, Paperchine asserts that Arizona courts have found Restatement § 424 inapplicable in Arizona, relying on Cordova, 146 Ariz. at 81, 703 P.2d at 1230 and Sullins, 124 Ariz. at 117, 602 P.2d at 498. Plaintiff, however, points out that Cordova, merely cites to Sullins, which in turn cites to Welker for the statement that "The Arizona courts have expressly rejected the principle of non-delegable duties of contractors. . . ." Sullins, 124 Ariz. at 117, 602 P.2d at 498. Since Plaintiff believes thatWelker is no longer good law, as previously explained, Plaintiff argues that Welker cannot provide support for refusing to apply Restatement § 424.
Restatement § 424 provides:
One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.
In Arizona, courts have held that Restatement § 424 does not impose a non-delegable duty upon a property owner who has contracted with independent contractor. See Cordova, 146 Ariz. at 81, 703 P.2d at 1230 ("§ 424 of the Restatement has been held to be inapplicable in Arizona. . . . Division One of this court stated in Sullins that § 424 does not apply in the area of tort law governing the relationship of the employer of an independent contractor to an employee of that contractor."); Sullins, 124 Ariz. at 117, 602 P.2d at 498, ("While it is axiomatic that the courts of Arizona will follow the application of the Restatement (Second) of Torts in the absence of authority to the contrary, it is clear that the Restatement (Second) of Torts s 424 does not apply in the area of the law governing the relationship of an owner of property to an employee of an independent contractor."). While the analysis in Cordova and Sullins traces back toWelker and its rejection of non-delegable duties of contractors, the Court has found Welker still is a valid precedent, as discussed above. Thus, under the holdings of these cases, Restatement § 424 is not applicable in Arizona when dealing with the relationship between an employer of an independent contractor and the contractor's employee. To the extent that Plaintiff is seeking to impose vicarious liability through Restatement § 424, the Court finds in favor of Paperchine on this issue as a matter of law.
V. Workers Compensation
Since Plaintiff seeks to impose vicarious liability on Paperchine through the negligence of Enerquin, Paperchine argues that it is entitled to those defenses available to Enerquin. As the Court does not find that Paperchine is vicariously liable for Enerquin's negligence, as discussed above, the Court will not address this argument.
CONCLUSION
Summary judgment in Defendants Abitibi and Paperchine's favor is proper as to Plaintiff's premises liability theory because Restatement § 422 does not apply to suits by employees of independent contractors. With regards to Plaintiff's theory of retained control pursuant to Restatement § 414, summary judgment is not proper as to any party because genuine issues of material fact exist. Finally, the Court grants summary judgment to Paperchine on Plaintiff's vicarious liability claim under Restatement § 424.
IT IS HEREBY ORDERED that Plaintiff's Motion for Partial Summary Judgment is denied (Doc. 135).
IT IS FURTHER ORDERED that Defendant Abitibi's Cross-Motion for Partial Summary Judgment is granted as to premises liability under Restatement § 422 and denied as to retained control under Restatement § 414 (Doc. 148). IT IS FURTHER ORDERED that Defendant Paperchine's Cross-Motion for Summary Judgment (Doc. 157) is granted as to premises liability under Restatement § 422, and vicarious liability pursuant to Restatement § 424. The motion is denied as to retained control under Restatement § 414.
IT IS FURTHER ORDERED setting a status conference in this case for October 12, 2010, at 11:30am.
DATED this 30th day of September, 2010.
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