*1 55,222 No. Balagna Balagna, By
Frаnces Through Nex Joshua t Friend, v. Shawnee Plaintiffs-Appellants, Balagna, Frances al., et Defendants-Appellees, County, Kansas, Van Doren- al., et and Dallas W. Hazard-Stallings, Freeborn, Defend ants-Appellees, Third Party Plain County, Kansas, Shawnee v. M. W. Party Third Defendant-Appellee. Inc., tiff
(668 157) P.2d *2 11, August Opinion filed 1983. Missouri, P.C., Pickett, City, Pickett, of Kansas William H. William H. of Schroer, firm, Perkins, cause, Gene of argued the same and and Robert of J. Rice, Topeka, Schroer, Bryan Lykins, with him on the brief for
Jones, & were of appellants. Counselor, Voth, County argued was the cause and Donna Shawnee County County Sewer District Main and Lateral and Shawnee brief for Shawnee 33, defendants-appellees. No. Nichols, Marshall, Hawks, Hendrix, Marshall, Schenk and of Herbert A. of firm, cause, Perry, was him on Topeka, argued of the same and Robert J. Freeborn, al., Doren-Hazard-Stallings, de- W. Van et Dallas
the brief for fendants-appellees . cause, Heck, P.A., Hoover, Fisher, Topeka, argued the Ochs and Ann L. firm, Ochs, Zackery Reynolds, were on the E. sаme and Robert D. Inc., defendant-appellee. Watson, party M. third brief for W. opinion court was delivered of the and child of brought the widow This is an action Prager, J.: wrongful death. The damages Balagna Dennis to recover decedent, Balagna, was killed when the sides of a trench Dennis site. The working was at a construction caved in on him while he (1) architect-engineers, Van Doren-Hazard- defendants are: Freeborn, hereinafter re- agent, Dallas W. Stallings and their (2) landowners— Engineers; ferred to as Van Doren or County Main and Lateral Sewer County and Shawnee Shawnee County; (3) 33, as the District hereinafter No. Referred Balagna, M. W. employer of Dennis independent contractor Watson, granted separate motion of Inc. The district court ap- summary judgment, plaintiff have each defendant pealed. dispute and the in the case are not in the essential facts
Most of them to be as follows: trial court found with M. W. County into a written contract
1. Shawnee entered disposal fаcility Inc., sewage the construction District No. County Main and Lateral Sewer as Shawnee known April was executed Lagoons. The contract Waste Treatment Project C-2 of the 18, 1978, pages C-l and and consists of Specifications and General Manual. The Standard Technical streets, sidewalks, Clauses for sewers and miscellaneous con- Kansas, promulgated City Topeka, struction dated August part made a for Sewer along special specifica- with the District No. conditions and Project tions contained in Manual. decedent, Balagna, employee
2. Plaintiffs’ Dennis was an working the contractor at the construction site on the sewer 28, 1978, project question. Balagna On was killed when June collapsed. the unshored and unbraced walls of a sewer trench Balagna standing approximately The trench where was five employee present to ten feet deep. No jobsite on the aforesaid date. Specifications incorporated
3. intо the contract between County required Contractor and the Contractor to follow certain safety precautions trenching as set forth in the Associated (AGC) General Contractors of America Manual of Accident Pre- *3 regulations. regulations required and OSHA These vention that Balagna trench in which the was killed be shored. County actually
4. supervise did not direct or the em- ployees performance the of Contractor of their work. Doren-Hazard-Stallings,
5. Engineers, Van the contracted with County prepare defendant Shawnee plans specifications and project question sewer County the which it did. The did supervise Engineers or advise in designing plans the the specifications project. During phase the construction the of project, County the employee of the super- no undertook actual Engineers. vision of Engineers the The contract between the County required and the Engineers that the review construction compliance plans with the specifications. It provided Engineers compensation further that receive for in- spection Engineers, services. The as inspectors, in the course of required the replace construction the Contractor certain rein- forcing compaction steel and to redo some work. Regarding responsibilities Engineer, (defined
6. the the by of Project the County Engineer), Manual as the Shawnee the Stan- Specifications provided dard Technical County Engi- that the interpretations neer should make may corrections be necessary deemed for the fulfillment of the intention of the provided County documents. It Engi- contract further that the authority neer regulate should have the the amount of work may construction in advance the open or under be sequence portion the of construction completed work. by County Engineer prior the to construction approved was to be Any specifications. substantial if not covered the County sequence apprоved the deviation was to be County provided that Engineer. Such also any part it Engineer suspension of the work or could order weather, temperature any or due to prevailing when inclement whereby durability of the quality or work other condition adversely They County that the could be affected. further stated inspect equipment all used and all Engineer could materials inspec- contract. In connection with such work done under the tions, County Engineer parts have all of the was to access to work, furnish deemed and the Contractor was to information County Engineer relating to the work and pertinent could used in work equipment materials. No materials be they approved by County until had been examined and Engineer. County suspend right
7. of the respect With contract, Specifications Technical terminate Standard provided it be determined the Contractor be that should intolerably prosecution negligent or slow in the work or laws, ordinances, consistently disregard should Contrаctor regulations Engineer, or otherwise or instructions guilty any provisions substantial violation of the documents, County upon that suffi- contract determination existed, preju- cause could the contract without cient terminate any remedy right upon dice to determination other compliance provisions contract Contractor was not documents, upon notice served the Contractor written to be *4 (10) days ten effect the contract terminated within that be complied. specifications has Such also unless the Contractor to make alter- provided right should have that plans and in and either ations modifications without affect- beginning or after the of the construction before performance bond. ing validity the contract and Specifications provide in 8. The Standard Technical Section Trenching Contractor’s “[t]he Excavation, Backfilling, and performing these procedures and excavat- proposed methods applicable oрerations ing dewatering shall conform to 1072
provisions of the AGC Manual of Accident Prevention and regulations. OSHA The Contractor shall responsi- assume full bility the work and the satisfactory performance personnel.” the work working (Emphasis and/or supplied.)
9. Paragraph General Clauses of the Standard Techni- Specifications cal provides subparagraph (m) under the follow- ing: indemnify “The Contractor shall and save harmless the Owner and all its officers, agents employees suits, any character, from all actions or claims of description brought name any injuries damages for or on account of or by any person, persons property received sustained by or or caused the Contrac- employees by consequence any neglect or his or safeguarding tor or work, through unacceptable or the use constructing by materials in the work or any omission, neglect or on account of act or or misconduct of the Contractor or any or on аny account of claims infringement or amounts recovered patent, copyright, any trademark or arising or from claims or amounts or re- Compensation Law’, any law, covered under ‘Workman’s other ordinance, decree, money order or so much of the due the Contractor under and contract, necessary by owner, virtue of his may as shall be considered be or, money due, surety retained in case no shall be held until such suit or suits, actions, injuries damages action or claim or claims for as foresaid shall satisfactory
have been settled and evidence to that effect furnished to the owner.” 10. In Article IV of the contract with Shawnee County dated 15, 1977, December the Engineers agreed: personnel “1. provide To furnish Project. construction stakes for the provide inspector inspectors, “2. To progress, whenever work is in compliance review construction with the and specifica- tions. accept compensation “3. IV, To for services set fоrth in Article Sections and periods such provided amounts and at such of time as hereinafter and such compensation complete payment work, shall be and sufficient equipment for all used, and materials and services rendered in connection with the described (Emphasis supplied.) work.” evidentiary Other matters covering specific details re- garding tragic accident developed through discovery depositions of witnesses present who were either at the time the accident occurred experts or who were responsibilities procedures involved construction work comparable to involved in this case. evidentiary Those matters will discussed, relevant, where in the course of the opinion.
Since appeal this arises from the trial granting court’s of each
1073
summary judgment,
general
defendant’s motion for
rules
pertaining
summary
judgment
party
should
reviewed. A
against
sought
whom the motion is
is to receive the benefit of all
may
and
reasonable inferenсes
doubt
be drawn from the
Bares,
facts under
Pedi
consideration.
Inc. v. First National
Bank,
477,
(1978).
223
pleadings
Kan.
protected before an act is said In violation of duty negligent, complaining, the there must exist a to the individual to be injury. plaintiff The who of which would have averted or avoided observance duty Following owing himself. his fellow man sues a breach of sues (1960).” Auer, Syl. ¶ v. 357 765 6. Blackmore Kan. P.2d applicable law Hanna, opinion In the court reviews the great weight jurisdictions concludes that the from various not, authority that reason supports rule an architect does supervisory construction, responsi- authority his over assume bility day-to-day by the contractor to for the methods utilized duty complete is to see the construction. architect’s- basic gets structurally is employer product his a finished that specifications and sound and which conforms to the standards. duty may safety procedures Any involving have architect specifically by the the contractor must have been assumed or must have actions outside the contract. contract arisen duty super- determining whether the architect’s contractual safety practices jobsite, on vise the construction includes intentionally, actions, bring may impliedly by the architect duty supervision. responsibility within his any case where an appear factors which would to be relevant in beyond liability attempt expand the architect’s made specific provisions employment contract are set forth 3 of Hanna. syllabus ¶ above liability part
Cases which have found
of the architect-
engineer
usually
upon
creating
duty
specific
have
turnеd
facts
fact,
jobsite
One
the factors stressed is the
workmen.
architect-engineer
gained
knowledge
has
actual
of the dan-
gerous
carrying
supervisory
condition in
out his
duties. See for
Bechtel, Inc.,
example Caldwell v.
(D.C.
1980).
In plaintiffs this advance several theories under which They they right Engineers. claim the to recover from the first Engineers maintain that the and the the contract betweеn County required Engineers provide inspector the to review compliance with the and construction specifications, by referring that the OSHA specifications, standards, specifically required shoring to be used in the trench Balagna working. argument was Plaintiffs’ is that the where used, engineer shoring required failure of the to see that specifications, the created a of action in favor of the cause Engineers plaintiffs. The trial court held that the in this case did generally methods not assume control of the contractor’s and, therefore, procedures completing job they cannot be the trenching legally responsible agree for the accident. We held Engineers the with the trial that the contract between court upon Engineers the specifically place did not jobsite. Such responsibility safety of the workmen on the for the in Hanna. required a result is the decision must, however, Engi- question whether We consider theory inspector, Dallas can be liable on thе their neers held Freeborn, trenching opera- having knowledge actual that the W. standards, had being carried out in violation of OSHA tions were injury prevent duty appropriate take some action to have the record in We considered employees of contractor. to show that the that there evidence this case and concluded Freeborn, Doren, through employee, their had Engineers, Van requiring shoring in knowledge safety standards actual furthermore, and, knowledge had actual trenching operations being safety followed prescribed precautions were that the tragic accident occurred. In our by the at the time contractor duty in the to take Engineers this some judgment, created injury employee, action to the contractor’s prevent reasonable reasonably Engineers not the acted Balagna. Dennis Whether or was a issue which should under all the circumstances factual Hence, jury in the trial have been submitted to the this case. summary granting judgment in favor of the de- court erred fendant, agent, Engineers, their Freeborn. following arriving at we factual this conclusion note depositions: which
statements are contained supplemental specifications The contract documents sewer, trenching operations, including the construction architect-engineers, prepared Van Doren. The con- project in a specifications tract documents are contained case. manual which was introduced into evidence Since defendant, Doren, manual, actually prepared project Van safety covering precautions included in trenching operations, followed it cannot be denied that they specifications. had of those Freeborn, inspector Dallas W. Van Doren’s at the construction site, 8,1978, present when the accident occurred in June the course of of a trench. Freeborn testified in his excavation *8 that deposition the standard technical which were in the in included construction contract documents this are case usually incorporated per- into most construction contracts be Topeka city limits. the agreed formed He that AGC prevention, requires manual of shoring accident in trenching operations, part a was made of the construction con- previously regulations stated tract. He that he had read OSHA project regarding trenching. engineer He was the for Van Doren lagoon. employee, on this sewer treatment He and another Schmitt, prepared plans specifications. the with attached He was only engineer at the scene on when the June previously specific accident occurred. He had had no discussion inspection prior about his job duties to his that undertaking assignment, orally that, he but had been instructed he if found something being compliance was done which was not in with specifications, he tell person charge was to that particular piece was in compliance of.construction not they that paid would not be for it. that,
Mr. general way, Freeborn stated a he knew that the a construction of trench ten length feet- in feet deep five clay probably require made of on both sides would some-shoring. accident, On the morning of the when saw he the trench in question, he knew that the trench shoring should have in it according to its site, dimensions. When he arrived at the a operation was in digging backhoe the trench. At the site he met Dinkel, employee contractor, Mr. who was in charge of the work. He watched the excavation work for a few point minutes at one saw men in two trench. two men had an engineer’s level which was used to determine specific a plane. trench was on (Balagna) horizontal One man had the level at holding points rod was it checking various grade. holding He saw the man the rod walk into the necessary excavation. It was not man be trench determine that it was That level. same determination could have person been made standing top a at the of the trench and holding the down top. rod from the trench,
At the saw time he the man in shoring he noticed shoring lying material for on top of the trench north standing. there, side where he and Dinkel While he was carpenter bring shoring continued to more material. Freeborn shoring knew that going materials were to be used for shoring in questioned counsel, excavation the trench. When he he being stated knew that a man in an unshored trench of that depth dangerous situation, time, although, he did give any particular thought not as to whether it was dangerous or dangerous not. It is true that can unshored trenches immedi- ately they after are made. by plaintiffs’ why was asked
Freeborn counsel he not did tell get the man that in the trench until it out trench was, response could be shored. Freeborn’s “That man’s boss was standing right It there with me. is not for me to tell what him Thus, do.” stated that he Freeborn chose to enforce the *9 operations, shoring trenching be- regarding portion regarding involved con- methods
cause that job and, particular “I don’t tell him to use do a tractor chose to that, when he was there work.” admitted how to do his Freeborn work, he it not knew was com- reviewed excavation shoring. He did regarding not do pliance with OSHA standards duty, it the contractor’s not his. He anything because he was felt telling trench because not the worker leave the did consider any anything. He had the workers to do been he never tells Doren, that, inspector, as an he employer, his instructed Van inspect product. Specifically the end only was the work as to trenching regard regulations regarding he tes- OSHA tified follows: following day you them the And observed the contractor Dennis “Q. death, 28, 1978, you? Balagna’s didn’t June Yes, sir. “A. “Q, you steps they make sure he were not in And took no was told that, you, compliance with did sir? Yes, sir. “A. just noncompliance regarding stood and let be in state You there them “Q.
safety regarding trenching compliance, is that correct? correct, “A. That’s sir. Why? “Q. follоwing given I am that I we were “A. the orders not to be Because with how his did work. the contractor concerned ‘54, you engineer As an since would consider trench excavation ultrahaz- “Q. inherently activity dangerous for workmen involved? ardous Possibly it “A. could be. Why? “Q. always “A. There’s chance it can cave in. adequate with, complied preventions to eliminate that are is that Unless “Q. correct? Yes, “A. sir.” that, deposition testimony substance of Freeborn’s if he trench, employee get had told out he would have power engineer overextending inspecting been his as the jobsite. deposition Honigs, city also
There is in the record of Earl city city engineer Topeka. Honigs manages engi- for the neering department responsible inspection for site re- city garding design projects. construction He tes- . deposition dangers that he was familiar with the tified *10 his properly in a if it is not shored. It was workmen trench that, shoring if is called for in the opinion done, engineer may then the shoring was not сontract is in- shoring to because that specifically address himself opinion his that an in work the contract. It was volved under jobsite power have the inspecting engineer at the would contract, shoring place if was in in a suspend the work under a no required by being shoring where trench excavated that, Honigs if he at the scene and saw a contract. testified than into a trench where the man on more one occasion walk lying top of the and where he knew shoring was trench violation, experience personal his he there was a code from own job something supervisor. said He have would have would job supervisor was and he asked the what intention whether that then with a was aware of conditions of trench existed trench. man in the testimony deposition set forth
We have concluded from the present legitimate that a issue of fact was in the case above Freeborn, reasonably inspecting engineer, acted whether as prevent injury Balagnа under the as an circumstances We, therefore, employee prin- hold under the contractor. discovery, developed ciples of law stated above and facts sustaining the district was in error in motion for that the court summary judgment and its em- filed on behalf of Van Doren ployee, W. Dallas Freeborn.
Liability
of the Landowner
entering
plaintiffs
that the trial court erred in
The
maintain
defendants,
County
summary judgment
Shawnee
in favor of
County
33.
Main and Lateral Sewer District No.
Shawnee
which contracted with M. W.
Shawnee
is the landowner
Inc.,
contractor,
project.
Watson,
to build
sewer
The basic
County,
owner,
Shawnee
is liable
presented
issue
whether
Inc.,
independent
negligence M. W.
for the
general
in this
is that
rule
state
contractor.
well-established
another,
reserving
person lets
the contractee
when a
out work
workmen,
relation of
contractor
no control over the work
servant,
exists,
that of master and
and not
contractee
negligence
improper еxecution
is not
for the
contractee
liable
Co.,
Gypsum
v.
83 Kan.
by the
of the work
contractor. Laffery
Kan.
345
(1910); Reilly Highman,
v.
185
P.2d
(1964).
cases
The Kansas
480, 487,
as the (1965), § (Second) of Torts in the Restatement set forth following language: *11 Danger Negligence “§ Inherent Work 427. as to involving special a employs independent contractor to do work “One who an employer be inherent
danger or has reason to know to which the knows to others contemplate work, contemplates or has reason to which he in or normal to or сontract, subject liability physical making harm caused to such is when against precautions such take reasonable the contractor’s failure to others danger.” original § Appendix 427 in the reporter’s note under The has in which the doctrine lists a number of situations volume Among listed are included the applicable. those been held insecticides; Crop dusting spraying work involv- following: the excavation was ing highway, in near the where excavation sidewalk, highway unguarded; left work done above fell; contemplating of the something obstruction where work use; it in an while is highway; installing doors on elevator frame; building turning gas installing joists a steel defective on cemented; they acetylene use of an torch into mains before repairing building; repairing in near inflammable materials iron, which skylight, arrangement for removal of loose no off; dropped being work done was blown red rivets into hot Many involving type, are work this some of below. cases cited inherently dangerous was with result- which hold that thе work holding liability and other cases work ing contractee and, hence, inherently dangerous, the contractee was not liable. trenching us is work issue which faces whether basic inherently dangerous falls within the ambit of the
in this case liability part of the activity create on doctrine so negligence landowner-contractee, County, for the Shawnee
1081
contractor,
Inc.,
performance
in
M. W.
of the con-
Reilly
v.
Highman,
tract. In
at
Kan.
the court states that
question
type
on the
of what
of work is or is not considered to be
inherently
intrinsically dangerous,
courts have found
rule
no
application by
they may
abstractly
universal
draw a line
every
regard,
in
In
classification
case.
this
the court stated:
“Generally speaking,
proper
danger
performance
test is whether
‘inheres’ in
work,
important
of the
factors
be understood
considered are the
contemplated conditions under which the work is
to be done and
known
attending
enough
may possibly produce injury.
circumstаnces
It
it.
is not
that it
way,
danger
undertaking
Stated another
intrinsic
is one which
inheres
performance
directly
of the contract and results
to be
from
work
done—
negligence
(27
Jur., Independent
not from the
of the
collateral
contractor.
Am.
Contractors,
39, p. 518;
C.J.S.,
Servant, 590,
(1),
§
§
p. 361,
Master and
b.
1084, 1095.)”
at
annotation
23 A.L.R.
Phillips
Pipe
v.
recognized
Line Co. Kansas
The same test
Inc.,
Storage,
Cold
inherently
or,
very
dangerous
least,
a jury question re-
mains as to
such
inherently dangerous.
whether
are
point involving
We have no cases in Kansas
this
excavation or
trenching operations.
jurisdictions
The cases in other
are
Cummings,
al.,
Admx. v. Hoosier Marine et
conflict.
173 Ind.
App.
(1977),
trenching,
ous. v. Federal Hare Kemp County, 556 1973); v. Knox S.W.2d Supp. (N.D. 214 Miss. 187 City Caple, v. Okla. 1977); (Tenn. App. Oklahoma 546 Co., (1940); Contracting v. Osborn 591 P.2d 209 Horn C.L. (5th 1979). F.2d 318 Cir. above the authorities distict this case found cited
The court in inherently of the dan- and determinative persuasive to both law, as a matter of gerous court held activity issue. trial record, in that the undisputed facts contained basis of the the trenching inherently in this case were not operations involved exception general intrinsically dangerous, and that the (Second) nonliability in of Torts set Restatement rule forth § decisions above does not and in the Kansas discussed County the Sewer District apply. held that It thus Shawnee independent con- vicariously liable for failure of the were not Inc., tractor, shoring trenching in M. W. to use this We concluded that the trial court case. have digging on this of trenches reached the result issue. correct many every day types is under of construction performed work taken, injuries proper precautions contracts. are should Where caving from in of the sides of not result to workmen judgment, injuries caving of ditches trench. our from the negligence shoring is the direct result of the lack because performance work. the contractor excavation theory, plaintiffs As an alternative contend further nondelegable duty by failing another Shawnee breached shoring bracing of trenches under the so-called require (Second) peculiar as set forth in risk doctrine Restatement (1965) provides: § 416 Torts Dangerous Special “§ Work in Absence of Precautions 416. employer independent employs an to do which the who contractor work “One recognize during peculiar physical likely progress its risk of should to create taken, subject liability special precautions harm others unless are physical harm caused to them the contractor failure exercise though precautions, employer provided even to take has care such reasonable precautions such the contract otherwise.” § 416 states that there is close relation between Comment a. to § § dangers in or the work. and 427 as inherent normal to applied more stated in two sections have been The rules these *13 type where interchangeably in the of cases. The сases less same usually § factual circumstances applied of 416 involve the rule high- public near streets or performed is to be where the work case, risk doctrine in this ways. considering peculiar the fact that applicable in view of held that it was not trial court Shawnee showing any employees there was no the work any detailed County had intimate or that there was clearly establishes being performed. The record County during trenching present employee no of Shawnee County its that Shawnee any evidence to show independent anticipate that the con- engineers had reason to Watson, Inc., tractor, did intend to follow M. W. not agree with the trial requirements performing We work. §in 416 of the peculiar risk doctrine contained court that the applied in this case. Restatement should not be County should be plaintiffs further maintain that Shawnee liability imposed upon possessor a held on basis of liable dangers injuries resulting from hidden land for to an invitee common-law rule that premises. Plaintiffs cite traditional person upon enter possessor land who invites a an owner or person premises in a duty the land owes a to that to have reasonably use in a manner consistent safe condition for rule, may land possessor Under the a purpose of the invitation. an unsafe condition of land if be held liable to such invitee for possessor and not to the invitee. is known to the condition generally been duty keep premises safe for invitees has nature only which are in the applied to defects or conditions or could dangers which an invitee does not know hidden liability ordinary care. There is no discover in the exercise of person danger which is as obvious and well known injured as it is to the owner. reasonably case, safe present premises
In the possession, since time the contractor took no condition at the premises were turned over to trenching existed at the time the shoring bracing was a trenching without the contractor. The circumstances, created the contractor. Under condition plaintiffs correctly rejected the contention of the the trial court theory that a County be held liable on that Shawnee could danger. a hidden land is liable to an invitee for possessor of Finally, plaintiffs that the trial court erred contend for failure could not be held liable holding that Shawnee We find project. duties over the no carry supervisory out its *14 regard. error in this It is clear from the that record Shawnee County supervise employees did not direct of M. W. Watson, Inc., performance of the construction work. Its employees personally were not involved in the actual construc- project. Furthermore, tion of the there is evidence to show no County employees any supervisory that of Shawnee exercised consulting engineers. County duties over the Shawnee as land- totally upon architect-engineers provide owner relied specificаtions, protect and to its interests vis-a-vis the circumstances, contractor. Under all the it is clear from the County that record Shawnee did not control manner which performed. nothing work was There is in the record to show any negligence part County on the of Shawnee or the Sewer above, District. On the basis of the rationale set forth we hold that granting summary judgment the trial court did not err in County favor of Shawnee and Shawnee Main and Lateral Sewer District No. 33 as a matter of law. Liability of the Contractor
Finally, plaintiffs contend that the trial court erred in dismissing plaintiffs’ against contractor, action M. W. Watson, Inc. The trial plaintiffs’ against court denied claim ground Watson that the Kansas Compensation Workmen’s provides Act remedy plaintiffs’ the exclusive for claims. The application of the compensation injury workers’ act to the fatal of Balagna dispute. Dennis job He was on the when the injuries occurred on accident 1978. The he suffered June employment arose оut of and course of his with M. W. Watson, Inc. brief, plaintiffs recognize many their Kansas cases recovery hold that against employer no can be had
injuries
compensation
for which workers’
They
is recoverable.
contend, however,
compensation,
that
meaning
within the
compensation
workers’
act
recovery
does not include
damages
for such elements
damage
as loss of companionship, society,
from a
According
comfort
husband and father.
plain-
to the
tiffs,
compensation
workers’
only
includes
medical and funeral
expenses
wages
paid
injury. They
rate
at the time of
urge
plaintiffs
us to hold that the
should be allowed in this action
compensation by way
damages
nonpecuniary
recover
compensation
loss and also
Balagna’s
earnings
lost
had he
during
expectancy.
reject
life
We
worked
normal
conten-
plaintiffs
hold
the trial court properly
tions of
dismissed
W.
plaintiffs’
against
action
M.
Inc.
common-law
Since
act,
сompensation
the enactment
the workers’
it has been
held
remedy against
employer provided
to be the exclusive
injured employee
dependents.
his
employee
de-
pendents
regardless
proof
the act
recover benefits under
An
negligence
part
employer.
argument
on the
similar
rejected
presented
in this case was made and
in Fritzson v.
Manhattan,
(1974).
City
215 Kan.
For the set forth the case is reasons affirmed in part. reversed The case to trial court is remanded the for defendants, proceedings involving plaintiffs further Van Doren-Hazard-Stallings and W. Dallas Freeborn. substance the court’s de- C.J., dissenting: The of Schroeder, recovery permitted the limited the
cision is to circumvent law. Here make new Compensation Act and Workmen’s safety with standards in compliance for responsible contractor employees his to duty his owed to shore fulfilling contract liability job The resultant trenches made on site. Compensation by the Workmen’s was covered contractor who is borne workman Act for the death of contractor’s insurance carrier. compensation contractor’s workmen’s ¶ Syllabus 4 in relies in this case the court on To reverse Webb, Neel, & 233 Kan. Huer, Johns, Rivers v. Hanna (1983). P.2d 243 portion is taken from pure in Hanna and
This is dictum opinion which reads: negligence responsibility has general been an architect’s “The rule as to stated as follows: “ failing negligence exercise the may held architect be liable for ‘An profession, unsafe ordinary results the erection skill of his injured. any lawfully premises An architect’s whereby is one structure upon injury may resulting based liability negligence personal or death liability plans. upon supervisory defects activities his him; employed architect, moreover, the modern who is limited the owner liability. As in other prerequisite privity is not of contract
view is that
recovery against
hоwever,
the architect unless
cases,
be no
negligence
there can
personal
proximate
case of
negligence was the
that his
it can be established
injury
2d,
25,§
wrongful
pp.
Architects
688-89.
death sued for.’ 5 Am. Jur.
professional,
idly
stand
“As a
an architect cannot
actual
safety practices
jobsite
steps
unsafe
on the
and take no
to advise or warn the
however,
situation,
plaintiffs
owner or contractor. Even in such a
still
bear
duty
them,
duty
showing
burden of
owed
a breach
and that the
injuries
proximate
was the
cause
breach
suffered.”
By opinion the court’s any the architect absolved con- responsibility tractual jobsite, on the but under the negligence theory supervisory court’s capacity architect’s see that the properly are fulfilled is enlarged responsibility to include for the OSHA standards writ- ten into the contract with position the contractor. With this I agree. cannot my opinion the trial court making was correct in findings *16 upon
based the record and in its rulings. In September 20, 1982, its Memorandum Decision dated engineers’ the summary judgment, motion for the trial court following finding fact, made the disputed by of which is not the parties: Specification 2, Excavation, “8. In the Standard Technical in Section Trench- ing, Backfilling, & responsi- it was stated that ‘The Contractor shall assume full bility satisfactory performance safety for the the of work and the of the work working personnel.’ and/or provided . . . Said further as fol- lows: liability “The shall damages Contractor assume all risk and for accidents and may persons property during prosecution work,
that occur to or the thе of negligence himself, agents employees, reason of or carelessness and damage may shall assume also all direct or indirect be suffered or claimed on any improvement, during account of such construction or the time and thereof accepted.” until the work is rejected The district “plans court the contention and specifications” duty proper included the to ensure safety OSHA procedures trenching, holding: for duty Engineers “The contractual merely of the in the instant case was to provide inspectors progress operations when work was in to review construction compliance plans specifications. Engineers authority for with the and had no Furthermore, stop only responsibility inspect to work. their was to and not to supervise They duty authority progress the had work. no contractual to Engineer control the method and manner the Contractor’s work. design compliance report authorized to review construction for and to any County. authority given by deviations to Shawnee No other the contract documents.” duty expanded The contention that the architect assumed for jobsite safety by assuming responsibility day-to-day methods doing premised upon interpretation is also work “specifications” including OSHA regulations as for shor- trenches, ing required the fact that twice the architect bring project compliance to do extra in contractor work to plans specifications. response argument with the In this properly the trial court held: strenuously argue Engineers required “Plaintiffs that because Con- replace work, reinforcing compaction
tractor certain steel and to redo some Engineers day-to-day actually doing had over the manner and control method of Engineers’ the work. Since the role at the as construction site defined only design supervise conformity contract documents was to ensure and not to work, requiring replaced redoing such conduct as steel to be reinforcing compaction comply in work order to is not the specifications, requiring Engineers higher exercise control to to adhere to a justify of sufficient holding than standard care contracted such liable defendants added.) involving (Emphasis plaintiffs’ accident decedent.” The court further stated: replace Engineers required reinforcing “The fact that certain Contractor compaction voluntary assump- steel and to redo some work does not constitute a duty plaintiffs’'
tion of a decedent and is not the exercise of sufficient control liability.” provisions question impose view of the contract representative Here the facts disclose that both the of the architect, Freeborn, superintendent Dallas con- work, Dinkel, standing together charge of the Mr. tractor was seen on the side of the trench when the deceased workman superintendent trench. The had the same the unshored part the OSHA standards that were madе a fact, superintend- obligation contractor’s as the architect. *17 shoring on the side of the trench that was ent had materials for operation The backhoe was in on the still under construction. trench, length at the only deep it feet and ten feet in and was five notify the architect to of the time the accident. Who was safety practices in required carry out the failure to contractor’s trenching operations jobsite? on the The contractor? The con- present superintendent jobsite already on the tractor’s knowledge. require doing had such The law does not of a architect, duty any, futile act. To whom was of the if owed? authority in The architect The workman the trench? had no to give Only superintendent the workman orders. the contractor’s jobsite authority. opinion had vague on the this The court in its duty act, particularly duty to the architect what owed architect to the workman the trench. majority says: “We have considered the record in this сase and that there concluded is evidence Doren, Engineers, through employee, Freeborn, to show that Van their had knowledge requiring shoring trenching opera- actual standards furthermore, and, prescribed safety precau- tions had actual that the being tragic tions were not followed contractor time accident judgment, duty Engineers occurred. In our this created a to take some prevent injury employee,
reasonable action to to the contractor’s Dennis Ba- lagna. Engineers reasonably Whether or not the acted under all the circum- jury a factual stances was issue which should have been submitted in this added.) (Emphasis case.” says nothing comparative
The court negligence. about This jury to a comparative negligence principles case tried on will be indeed, strange, guidance trial given because the court is no as to instructed, jury how the should will jury required and the be comparative negligence to decide the parties оnly where parties obligation one of the had the comply contractual safety standards. duty plans
The architect’s specifications to see merely duty project followed entailed a to see that the sewer plans when constructed met the for which the pay. agreed owner The intervention of the architect on the two changes where occasions were made the contractor falls duty integrity under the architect’s see that the of the work specifications. meets .the The decision this could conceivably case add 10% to the projects cost of construction Kansas where architects are employed. legislature provided Our damages resulting has injury from industrial death workers should be borne Compensation those industries included under the Workmen’s imposes obligation industry, Act. While the Act it also imposes lid on compensate the amount that can be recovered to *18 clearly impose addi- case injuries or deaths. This will those industry. construction burdens on the tional financial the trial court judgment of respectfully It is submitted be affirmed. should dissenting opinion.
McFarland, foregoing J., joins the