Lead Opinion
ON CERTIORARI TO THE UTAH COURT OF APPEALS
We granted certiorari in this case to review the court of appeals’ decision reported at
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 occаsions, 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 muсh 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 agreemеnt. 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 generаl 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 emрloyee 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 wаs 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,
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,
Plaintiff, however, asserts that Kienke owed English a duty not only as his landlord, but also as a possessor оf 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 tо 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,
The dissenting opinion erroneously finds that Kienke has a duty, relying upon Shaffer v. Mays,
A limitation on the liability imposed by sections 343 and 343A was recognized in Donovan v. General Motors,
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 unnеcessary 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.,
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,
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 thе 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 purchasеd 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,.,
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,
The decision of the court of appeals is affirmed.
Notes
. The court of appeals misread Williams v. Mel-by, stating that this court wаs 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.,
Dissenting Opinion
dissenting.
The majority holds as a matter of law that Albert Kienke, a landlord, owed no duty of care to Robert English, a tenant, who performed remodeling services for rent. I dissent.
The majority opinion represents an unfortunate departure from this Court’s prior willingness, in light of contemporary legal developments, to undertake a realistic reappraisal of old common law concepts of tort liability of possessors of land. See, e.g., Wade v. Jobe,
Williams modified the common law duty of care that landlords owe to tenants with respect to hazardous conditions on leased premises.
The legal relationship between English and Kienke was more than a simple landlord-tenant relationship. Although the labor English performed constituted rent, his remodeling aсtivities differed from the ordinary and usual activities of a tenant. English, however, was not an independent contractor in the usual or typical sense of that term: he was not licensed as an independent contractor; he was not experienced in construction; and he did not remodel for anyone but Kienke and only re-modelled for the purpose of paying rent. In any event, whether or not English was technically an independent contractor, Kienke still owed English a duty of due care under the circumstances. See Haberer v. Village of Sauget,
The majority acknowledges the change in the law made by Williams, but asserts that the old common law principle that “tenants are liable for any dangerous condition on the premises which they create” governs this case. Accordingly, the majority holds that English was an invitee and that Kienke owed him no duty of care because English created the hazard that caused his death. The majority states:
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 sеction 343 or 343A [of the Restatement (Second) of Torts ] 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.
I submit that the majority misapplies §§ 343 and 343A of the Restatement (Second) of Torts (1965). Section 343 states the general rule as to a landowner’s liability:
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.
(Emphasis added.) Kienke obviously knew of the risk of harm to English and should— and did — expect that English would not realize the danger. Whether Kienke failed to exercise “reasonable care to protect” English, specifically, whether the warning Kienke gave English was legally sufficient to discharge his duty of due care under the circumstances, raises a material issue of fact that a jury should decide.
Certainly a landowner’s warning of the hazards an invitee may encounter may be sufficient to discharge the landowner’s duty of due care. See Restatement (Second) of Torts § 343 cmt. d, at 217. See
In this state, persons hired to perform work for a landowner are business invitees. In re Wimmer’s Estate,
Under the principle stated in § 343 of the Restatement, a jury should determine the adequacy of Kienke’s warning. I submit that the majority’s mechanical and rigid application of the rule that a landоwner is not liable for an injury caused by a hazard created by an invitee does not comply with the Restatement and is bad policy under comparative negligence law.
A jury could reasonably conclude that Kienke was negligent to some degree and that English was not solely responsible for his death. It is undisputed that Kienke told English he should support the porch roof with “plenty of 2 x 4’s.” Whether that warning was sufficient, given the nature of the risk, the relative experience and knowledge of English and Kienke, and other circumstances, raises factual issues that cannot legitimately be resolved on summary judgmеnt. There is no evidence in the record as to how many two-by-fours should have been placed under the roof to provide adequate support or how many were in fact put in place as temporary supports. Nor does the evidence indicate how apparent the risk would have been to a layperson such as English or how great the risk was that the roof would collapse without proper support. There is, however, evidence that Kienke had superior knowledge as to the naturе and strength of the internal structure of the porch roof. Certainly, Kienke was far more knowledgeable than English as to the nature of the risk and what steps were necessary to avoid the hazard. Clearly, there are a number of factual issues that need to be explored to determine the adequacy of Kienke’s warning. In any event, Kienke failed to meet his burden on his motion for summary judgment of showing that there were no material issues of fact and that he was entitled to judgment as a matter of law.
We have consistently hеld that summary judgment should be granted in negligence cases only in the “most clear instances.” Webster v. Sill,
Even though plaintiff may have been negligent, summary judgment is an altogether inappropriate procedure for assessing her degree of negligence against the negligence of the defendants. In the days when contributory negligence was an absolute defense in a negligence action, summary judgment could be used to dispose of negligence actions without depriving a plaintiff of his right to a trial on the merits. Now, however, contributory negligence is not an absolute defense, and summary judgment is rarely an appropriate remedy for resolving negligence actions.
I would reverse and remand for a trial.
. Williams explained the reason for that modification as follows:
The expanded liability of landlords under modern law has evolved from recognition of the fact that a residential lessee does not realistically receive an estate in land. Rather, the lessee’s rights, liabilities and expectations are more appropriately viewed as governed by contract and general principles of tort law.699 P.2d at 727 ; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 63, at 434-35 (5th ed.1984) (discussing social policies supporting a modification of the traditional common law duty owed tenants by landlords).
. Williams stated that a lessor could be liable for negligence if
(1) he had contracted to repair the premises;
(2) there was a hidden or latently dangerous condition which was known to the lessor and caused an injury; (3) the premises were leased for purposes of admitting the public and a member of the public was injured; or (4) part of the premises was retained under the lessor’s control, but was open to the use of the lessee.