*1 ELECTRIC CO-OP et v. PETIT Clay al JEAN JACKSON 2d 66 606 S.W. 80-112 Supreme Court Arkansas 29, Opinion September delivered Rehearing denied November
5 07 *2 Roberts, Lowe, Brazil & and Chester C. Jr., petitioner. for Jennings, respondent. Lindsey &
Wright, to con- granted certiorari L. We Justice. Richard Mays, liability employer anof question of tort sider independent contractor. of an Corpora- Cooperative Electric Respondent, June, with contract
tion, entered into construction Company, of its elec- lines distribution new transmission rebuild Jackson, an 1979, Clay January, system. tric transmission petitioner and a employee body came into con- seriously injured when his herein, was *3 energized respondent’s on working while with a hot wire tact act compensation under the workers’ lines. recovered Jackson compensa- Company’s worker’s Construction from Johnson Marine carrier, and Insurance Fire Seaboard tion insurance herein, for sought and to recover Company, petitioner a also Petit against a by filing civil action injuries the same Jean liability. and strict theory negligence of only that Petit not breached its alleged Jackson Jean duty duty law of due care but breached the of care common affirmatively assumed of employees toward Johnson Company under contract. Construction construction alleged in an that even complaint Further amended Jackson negligent, if Petit were not Petit be liable for should Jean Jean by harm of Construc- physical caused Johnson work entrusted to Company, tion since the inherently dangerous. Company summary judgment, Petit after response motion for to Jean’s intervened, Company Fire and Marine Insurance Seaboard action, genuine no issue judge finding the trial dismissed liability. by material fact Petit On review regarding of Jean’s the judgment was affirmed. Appeals, the Court of that an in- recognized employer It is an of generally duty dependent contractor owes safety ordinary their exercise care for employees tractor’s to any unusually hidden hazar- dangers and warn or to Matson, 246 See Gordon dous conditions. general principle,
2nd Relying upon this Jackson to insulate duty failing its Petit breached alleges Jean lines dur- de-energize failing to hot wires isolate its or Under contractor. of the the work hours ing giving entirely dispute, without facts that Jackson inferences, we and all favorable every fact of contested benefit duty Petit any upon imposing find the record no basis of employees warn its lines or to de-energize to isolate Jean for would the work as contracted an contractor that electrical Certainly, it cannot be if properly. not done dangerous lines from isolate seriously contended that should Jean compensation whose electrical contractor contemplate working obligations expressly and contractual an in- duty employer lines. The energized around warn latent ordinary care or to dependent contractor to use duty warn obvious dangers comtemplate does the contractor integral part hazards which are an work hired perform. duty that Petit had a to re- allege Petitioners also Jean quire provide sufficient and proper supervision devices for its predicate language Petitioners such a in the con- struction contract which reserved for Petit quality alter the size of the force and the *4 equipment tools and well job, used on as as to im- inspect approve language the work. Such does not any Petit and well pose special duties Jean See, being Company’s employees. Construction Johnson Electric, (W.D. Akins v. Okla. Gas & F. Supp. 1977). that Petitioners concede Construction Com- Johnson contractor, pany independent opposed was as to servant Jean, clearly of Petit and the record that Petit establishes any supervision did not exercise or control over the Jean manner actual details of work. Since Petit Jean promised supervise neither to nor undertook Johnson Company’s performance, Petit owed no Construction Jean Company’s duties to Construction contractual Johnson It that Petit should be liable to argued is also Jean it incompetent selected negligently because Jackson inherently dangerous Assuming, work. perform tractor to that Petit deciding, without owed to Jackson Jean contractor, find in the competent inadequate select a we facts negligent a material issue of selection. record to raise limited ex- Company has Although work, high-voltage superintendent, electrical perience familiar, with possessed whom Petit was substantial Jean experience. electrical The record contains no evidence that any Petit had Construc- reason to believe Jean at the Company incapable adequate performance tion time the contract was entered into.
Finally, irrespective any negligence the part of Petit Jean, petitioners contend that the negligence of Johnson imputed should be because of the inherently dangerous nature of the work.
Although general rule that an employer is responsi- is not ble for the negligence his petitioners rely upon a well-recognized exception ex- liability tends when the work which the employer delegates to an independent inherently contractor is dangerous. Smith, SouthwesternBellTelephone Co. v. 220 Ark.
2nd 16 The exception grounded is a recognition that the possibility of harm to others great is so when the activity inherently is dangerous that the law tolerates only on terms insuring the public against im- injury. We pose liability vicarious under these to insure circumstances that the public legal financially responsible has access to a party. The exception obviously intended protect those who have no direct with involvement activity, hazardous only incidentally exposed to its risks and have no direct means insuring themselves loss. Since an independent directly in the hazard- contractor are involved activity, ous have and are insured knowledge of the risks against injury by worker’s compensation, perceive we no justification sound for expanding the exception to include persons surely was not designed protect. e.g. See Corban v. *5 Co., Skelly Oil (5th F. 2nd 1958) 256 Cir. (applying law), City Soldotna, Arkansas and Morris v. P. 2nd 474 of (Alaska 1976). Affirmed.
Purtle, dissents. J. the my opinion, Justice, dissenting. I. Purtie, John opin- majority in the adequately stated this case facts of respon- between upon the contract This dissent is based ion. the independent dent and the reserved owner-respondent specifically The Company. the doing work employees the of right to control number and of quality type the It also retained control over Johnson. the job. Additionally, the reserved equipment be used effectually super- as well as to inspect approve, and vise, working the conditions of Johnson’s negligent in fail- complaint alleged respondent
The was provide ade- require independent the contractor ing to devices, equipment, tools and sufficient quate The supervision employees the of above proper of Johnson. respondent the responsibilities duties and were reserved to complaint alleged written The further contract. inherently dangerous in an respondent engaged by required respondent exer- high degree regardless a of care the contract between and Johnson. judgment
The trial findings court did not contain law. judgment fact and conclusions of Apparently, theory entered that an employee independent simply contractor could sue the owner. is the law This not I may as understand it. An owner prime contractor employee liable to subcontractor or when the prime tractor contractor or owner is guilty ordinary failure to use care or to warn the unusually might hazardous conditions which employees’ safety. affect the Aluminum Ore George, 208 Ark. 2d 186 S.W.
Certainly, complaint, with all reasonable inferences therefrom, in- deducible stated cause of action. After the terrogatories testimony, I feel that all in- do not such ferences were The must removed. trial court review record, summary in the judgment, light on motion for most motion, opposing party favorable all doubts *6 are resolved against moving party. New Hampshire Ins. Co. Quilantan, 2d my opinion, the complete- owner reserved ly and, so, control the performance doing plac- ed itself in a position being responsible negligence for its may which have true in the been absence of these provisions of the contract.
It appears to me the interpreted facts could reveal respondent simply placed independent contractor position to insulate itself negligence exact disability words, the petitioner. claimed In other attempted away to contract negligence petitioner. It respondent was the actually who directed the work and controlled the equip- conditions and ment which at being were used the petitioner time in- jured. It was not the contractor’s injuries caused the petitioner, at jury or least may have so I the respondent found. think prime tractor on project certainly this be responsible would of negligence acts to perform failure duties which owed petitioner. dissent,
Without prolonging this will simply I state that I believe there remained a genuine issue of fact which should have been left to the jury decide.