*1 presented by payee or a the check is Floyd Jones, Allen and Norene JONES in due course. A somewhat similar holder (Plaintiffs), Appellants argument presented in First National v. Cody Wyo., Wyo. Fay, Bank of U.S.A., INC., rejected argu- We CHEVRON 341 P.2d (Defendant), Appellee ment and stated: appellant’s premise “The claim Bennion; Jones; James William Jeff unjustly enriched if defendants will be Trampis through and Does 1 money permitted to retain the assumes (Defendants). money has received that whenever been No. 85-166. recipient is not entitled to retain affirmatively prove he unless is able Supreme Wyoming. Court right entirely to do so. This is un- 1,May 1986. appar- sound and its unwisdom becomes expressed ent if the same idea is in a Rehearing 6,1986. Denied June somewhat different fashion. For in-
stance, mean it would that whenever a
person money, receives he must there- prepared
after be to assume the burden proving legally should not be equitably upon repay called it. En-
visioning impossible situations which rule, arise under such a
would would any philos-
cause us to discard such rash * * ” ophy. simply That is not the law.
Id.,
Furthermore, although the bank
technically during enriched the time it money prior presentment
holds the check, appellant has failed to show that unjust.
such enrichment is It is the normal
course of business for a bank to hold funds presented payment.
until a check is error,
Having found no reversible
summary judgment granted by the trial respects.
court is affirmed all
Affirmed. *2 (argued)
Richard H. Honaker Rock Rose, Anaheim, Springs, and Jack A. Cali- fornia, appellants, Robert W. Tiedeken P.C., Terry Mackey, Cheyenne, W. filed an amicus curiae brief on behalf of the Wyoming Lawyers Trial Association. Brown, Drew, Apos- W. Mark Gifford tólos, Sullivan, Casper, appel- Massey & lee. THOMAS, C.J., BROWN,
Before CARDINE, MACY, URBIGKIT and JJ. CARDINE, Justice. appeal summary judg- an from a
This is U.S.A., in a suit granted ment Inc. Floyd for elec- brought by appellant Jones paint- injuries trocution he suffered while ing platform a transformer owned Chev- There are several interrelated issues ron. attention. At the out- which demand our set, an owner of we must decide whether employ- protect site work has a from haz- ee of an incidental of the site ards hired to work the contractor the owner owes perform. If we find that whether duty, must determine such a we is harmed employee to an who runs Finally, we man-made hazards. obvious supported deck must decide whether an owner can be vi- wooden metal braces cariously halfway up poles. liable to his contractor’s about affixed Two negligent This acts. platform transformers rested on the application last issue involves the. to the main were wired lines which special-risk doctrine of 416 and 427 of horizontally tops §§ ran across the Restatement, Second, Torts. We re- poles. *3 part. verse in and affirm in appellant painted After the metal under platform, platform he climbed onto the FACTS complete job. Electricity arced from 8, 1978, U.S.A., September On Chevron appellant, the transformers coursed general Inc. entered into a service contract through body his and knocked him from Electronics, with Automation & Inc. in platform. inju- He sustained serious agreed which Automation ries. labor, “[fjurnish equip- materials and Appellant complaint a in filed the district perform ment in- as needed to work as naming court as defendants Automation & representatives.” structed Chevron Electronics, Inc., U.S.A., Inc., Chevron his parties agreed The that Automation would supervisors, several unnamed fellow em- “perform the work as an con- ployees, and several unnamed tractor and not as an of [Chev- Chevron. Automation was dismissed from provided The contract also with re- ron].” the suit because of the bar of the Worker’s safety: spect to Compensation Act. Chevron moved for agrees, “Contractor while on [Chevron’s] summary judgment. vessels, premises or such to observe depositions support The and in affidavits prescribe rules as shall [Chevron] opposition in summary judgment of and necessary protection person- for the * * First, disputes disclose of fact. several property nel and appellant’s while it is clear that foreman September pursuant In present and fellow crew members were contract, general service Chevron hired Au- appellant paint H was ordered to power running to construct tomation lines frame, dispute there is a as to a whether gas to some of Chevron’s oil and wells near engineer Ap- Chevron was on the scene. provided specifica- Chevron Evanston. pellant in his affidavit that he re- stated power components tions for all the line and paint ceived instructions to the H frame employed surveyor staked who the loca- right interrupted after he a conversation power poles. tions for the Automation engi- between his foreman and a Chevron power poles, crews erected installed But, neer named either Bob or R.G. Chev- hardware, strung insulators and and project engineer, ron’s lead R.L. “Bob” Ki- energized. the lines. The lines were then yoi, stated in his affidavit: Appellant Floyd joined had Auto- Jones recollection, I my “To the best of was apprentice as an electrician in Au- mation job Floyd at the site at time Jones’ gust of 1980 and at worked the Chevron injury.” project inception early Septem- since its deposi- Appellant’s foreman testified in his ber. He was a member of foreman William any tion that he did not remember Chevron 10, 1980, Jones’ work crew. On October personnel being present. appellant instructed his foreman H what paint portions dispute the metal frame There is also some completed early deposition, appellant’s which the crew had Oc- was said. his energized had on he told the crew “to tober which been foreman testified that they go up poles paint 3rd. The H frame consisted of as far as October telling poles them two wooden which were set could reach.” He also recalled “out twenty apart paint part they could not reach about feet connected platform. platform truck.” But his affidavit horizontal was a bucket indicated that the instructions cause Automation was Chevron’s inde- him specific pendent less and led to believe employee; were contractor not safely paint plat- the entire that he could special-risk that the doctrine of 416 of § Restatement, form the bucket truck. He claims Second, Torts, without foreman, within the hear- that he asked prevents an owner from delegating its engineer, ing of the whether the of care to an go up.” “ready H frame was circumstances, [them] under some apply did not According appellant, his told foreman because, according court, the doc- ready, and another foreman told him it was adopted approved trine had not “been “everything him is clear.” He assumed by Wyoming Supreme Court [and] * * his conversations with his foreman Wyoming not the law of *.” engineer and the silence of the Chevron off. that the SUMMARY JUDGMENT dispute summary is little in the *4 There reviewing summary judgment “When procedure judgment materials about appeal, duty on our is the same that as of de-energizing lines. Auto- for the district court that we have before de-energize only lines mation could after us same material and must follow the Ap- obtaining permission from Chevron. party moving same standards. The for supervisor request a pellant’s did not shut- summary judgment has the burden of painting he ordered the down before proving genuine there exists no issue of proceed because it would have taken about fact and material that is entitled to [he] get permission an hour to from Chevron’s judgment as a matter of law. We look at operators. well viewpoint the record from the most fa motion, affidavits, party opposing depositions on the vorable Based giving every him favorable inference summary judgment materials before 0 it, may court found that Chevron be drawn from facts in the the district affidavits, duty depositions, owed no direct of reasonable and other materi held: properly care. The court al submitted the record.” (Citations omitted.) Texaco, Noonan v. law, that, a. as a matter of owners “are Inc., 160, (1986). Wyo., 713 P.2d 162 obligated protect employees of an * * * from haz- independent contractor OF OWNER TO INVITEE DUTY are incidental to or a ards which work the may An owner liable to a worker be perform”; was hired to premises on the owner’s who is an owner’s to discover and First, b. that of two theories. under either dangers prem- warn his invitees of on negli may responsible for the owner not extend to ises does under the gence of the worker’s physi- suffer independent contractor who Second, respondeat superior. doctrine of special danger cal harm “caused question vica- “quite apart any from * * * engaged in the encountered while responsibility, employer may be rious inherently dangerous performance of any negligence for of his own liable * * work”; the work to be done. connection with in- appellant’s employer was an c. for gives as he in fact directions So far contractor; dependent it, work, or equipment furnishes fact, that, dangers it, as a matter of d. he is any part control over retains were obvious to of the transformer tower exercise reasonable care required to * * Therefore, appellant. the obvious-dan- *. If the protection of others recovery land, a matter ger rule barred his employer’s on the own work is done law; required to exercise reasonable bewill or conditions prevent activities vicariously care to e. that Chevron could not be dangerous those outside negligence be- which are liable for Automation’s 894
it,
law;
up
or to
enter it
those who
as invitees.
which make
and it must be
cases,
In all of these
he is liable for his
only by the
determined
court.” W. Kee-
negligence,
personal
rather than that of
ton, Prosser and Keeton on Torts
37 at
§
(Footnotes omitted.)
the contractor.”
(1984).
Caterpillar
See also
Tractor
Keeton,
W.
Prosser and
on Torts
Keeton
Donahue,
Company
Wyo.,
674 P.2d
(1984).
71 at 510-511
See also Ruhs v.
§
Light,
Power
671 F.2d
&
Pacific
duty running
if there
But
was a
from Chev-
(10th Cir.1982) (applying Wyoming
law,
appellant,
ron to
as a matter of
then
law).
summary judgment
proper only
if one
Appellant
is liable
claims
un-
of the other
elements —breach
der
theories in the case at
both
bar. We
cause,
duty, proximate
damages
—was
analyze
will first
his claim that Chevron missing
appellant’s
case.
directly responsible
injuries.
for his
rule,
general
As a
Appellant argues that he was an invitee
“[a]n
Chevron, therefore,
and that
owed a
goes
premises
who
on the owner’s
is an
protect
dangerous
him from the
condi-
invitee to whom the owner
be liable
premises
dangerous
tion of its
and the
acts
injury
caused
an unsafe condition
employees.
alleges
and omissions of its
He
premises.”
Ruhs v.
Power
Pacific
premises
that Chevron’s
were unsafe be-
Light, supra, 671
(apply-
&
F.2d at 1272
cause Chevron
made
difficult for Auto-
ing
law);
Wyoming
Puget
Tauscher v.
mation to shut the
off while work
Light
Power and
Company,
Sound
*5
power
went
on the
forward
lines and that
274,
426,
(1981);
Wash.2d
635 P.2d
430
negligent
engineer
Chevron was
when its
Gas,
Electricity,
26 Am.Jur.2d
and Steam
at the scene of the accident neither warned
64 at 269.
§
power
the
on
was
nor or-
de-energizéd.
dered that the line be
exception
there
duty.
But
is an
to this
obligated
protect
An owner is not
to
the
duty
Chevron counters that the direct
of
employees
independent
of an
contractor
an owner to an invitee does not extend to
to,
from hazards which are incidental
or
employee
independent
of an
contractor
of,
part
very
the
work the contractor
injured by
who is
was
a hazard that is
of
perform.
hired to
Holdaway
work the
v. Gustan
son,
231,
perform.1
F.Supp.
(D.Wyo.1982),
was hired to
If Chevron is cor-
546
233
rect,
nom.,
properly grant-
grounds
then the district court
on
rev’d
sub
Holda
summary judgment
ed
as a matter of law. way
Company,
v. Amoco Production
751
duty running
The
(10th
the defendant to
Cir.1984);
F.2d 1129
Wolczak v. Na
plaintiff
negligence
in a
case
Corporation,
tional Electric Products
66
law,
64,
412,
(1961);
“entirely
question
N.J.Super.
of
168 A.2d
417
41
be deter-
body
Independent
mined
reference to the
of stat- Am.Jur.2d
Contractors
27 at
§
utes,
rules, principles
precedents
784.2
heavily
identify
1. Chevron
exceptions
relies
on our recent decision
volved. Nor does it
Texaco, Inc., Wyo.,
liability.
in Noonan v.
895 exception developed protect This repair contractor to hardware on the com- pre- owners from suits contractors who pany’s poles but the contractor is not ex- sumably assumed the risks associated with pected replace the poles. The they the work undertook on the owner’s company duty has a “commensurate with premises. Wolczak National Electric the control retained” provide poles safe Corporation, supra, Products 168 A.2d at for the employees. contractor’s Conover assumption-of-risk But 417. rationale v. Northern States Power Company, apply very does not well when a contrac- Minn., 397, (1981). If, N.W.2d on employee, contractor, tor’s rather than the hand, the other the contractor is hired to injured. willing Unless he is to lose his replace either poles defective or install new job, is often forced to work ones, then the company has no under whatever contract his employer contractor’s protect makes with the owner. He does not volun- dangerous them from poles long as the tarily job assume the risks of the site. See contractor controls the process. installation Keeton, Torts, W. Prosser and Keeton on Paul v. Staten Island Corpora- Edison supra, 68 at 490. § tion, A.D.2d 155 N.Y.S.2d The owner’s lack of control job over the site is a better reason for exception. link between control and owner lia- usually An owner hires an independent con- bility is codified in 414 of the Restate- § tractor because of the exper- ment, Second, Torts which states: type tise in the of work involved. In order “One who indepen- entrusts work to an job, do the contractor is generally contractor, dent but who retains control given the hazards incidental to work, any part subject the work. The owner permitted should be physical harm to others for to assume that whose owes a worker, superiors, “the or his pos- care, to exercise reasonable which is sessed of sufficient skill recognize caused his failure to exercise his con- degree danger adjust involved and to trol with reasonable care.” their methods of work accordingly.” *6 Wolczak v. National Electric Products An great owner does not have to retain a
Corporation, supra,
Because the
is
§
based on
fact,
(a)
comment
to
414 indicates that
delegation
the owner’s
of control to the
§
contractor,
the owner can
gives up
be liable even if he
apply
should not
when the
enough
owner maintains control over
control to make the
an
the hazard
contractor
“independent
that causes the harm.
example, sup
For
contractor” under vicarious
pose
power company
liability analysis.3
hires an electrical
marshy ground,
being
work,
doing any part
subject
both of them
fellow
of the
he is
to
engaged
part
gang
servants
of the same
liability
employees
for the
of the
operation
erecting
poles
the
therein,
a series of new
engaged
the contractor
under
and wires.” Paul v. Staten Island Edison Cor-
Agency
rules of that
of the law of
which
427,
poration, 2 A.D.2d
155 N.Y.S.2d
deals with the relation of
and servant
master
(1956).
[respondeat superior].
employer may,
The
problem
exception
with the New York
however, retain a control less than that which
only
apply
that it
seems to
to new construction
necessary
subject
liability
to
him to
as mas-
repair
or the
of the actual defect which ulti
may
only
power
ter. He
retain
to direct
mately
injury.
prefer
causes
worker’s
We
done,
the order in
be
which the work shall
or
general
exception
formulation of the
being
likely
to forbid its
done in
to
a manner
Holdaway
the trial court extracted from
v. Gus
dangerous
be
Such a
himself or others.
tanson,
F.Supp.
(D.Wyo.1982)
supervisory
may
subject
not
him to
repeated
which we
in the text above.
Agency,
principles
under the
but
Restatement, Second,
3.
Torts
414 comment
§
may
be liable under the rule stated in this
(a) states:
supervisory
Section unless he exercises his
employer
independent
"If the
prevent
control with reasonable care so as to
operative
retains control over the
detail of
“To
nature
determine whether the
formance or assumes affirmative duties
respect
present
safety
extent of the control
is sufficient with
owes a
of rea-
employee
care
impose liability,
indepen-
both the contractual
sonable
of the
provisions
dent contractor even
and the actual exercise of con-
injured doing
very
work the contractor
employer
trol are
If the
re-
relevant.
perform.
was hired to
only
right
serves and exercises
inspect the construction work to see that
Although
safety provisions
of the
specifications
the contract
are met while
Chevron-Automation contract
not have
contractor controls how given
enough
Chevron
control to create a
done,
and when the work is to be
there is
care,
duty of reasonable
Chevron’s actual
probably not sufficient retained control
energizing
control over the
subject
liability. Similarly,
it to
if the
lines
was sufficient to create a
as a
employer
only
right
retains
to re-
[the
Appellant’s
matter of law.4
foreman ex-
quire
that the contractor observe
plained in
deposition
that Automation
practices]
rules and
but assumes no af-
developed working agreement
had
with
firmative duties and never directs the
prevented
Chevron which
Automation
performance,
method of
there is insuffi-
de-energizing
crews from
lines without
supervision
cient control or
to render it
permission.
If
Chevron’s
one of Automa-
liable.
tion’s foremen decided that a line had to be
hand,
employer
“On the other
if the
de-energized, he would contact Chevron’s
right
tains the
permission.
secondary
to direct the manner of
office to obtain
If a
involved,
perform-
line
a line that did not
ance,
important
operations,
assumes affirmative duties with
oil well
Chevron re-
respect
safety,
quired permission
has re-
just
so its
tained
secondary
sufficient control to be held liable would know which
lines were
lines, however,
if he
negligently.”
primary
exercises that control
usable. With
(Citations
added.)
emphasis
might actually deny permission
omitted and
State, Alaska,
205, de-energize
operations
Moloso v.
644 P.2d
so that its
would not
211-212,
interrupted.
judgment duty on the issue. Second, if no were at Chevron accident, the scene of the Chevron BREACH OF DUTY have nevertheless breached its of care Because Chevron owed by adopting de-energization procedures law, due care as a matter of Chev appellant’s supervisor which deterred from summary judgment entitled to ron was requesting be shut off. depositions if the estab only affidavits jury Then the will have to decide whether lish that one of the other elements were under the procedures reasonable negligence missing. In appellant’s case is pro and to extent the circumstances what summary judgment the court stat its order caused the harm. As we said cedures ed: Wyo., 611 P.2d Jagusch, Bancroft (1980), “There is evidence that Chevron had con- 821
trol over decisions whether to de-ener- “[sjummary judgments proper are not However, gize the line. Automation & question is actions when Electronics made the decision not to ask actions or not the defendant’s whether line, de-energize so Chev- Chevron is a required duty. violate [That] nothing ron knew of it.” question of fact.” words, the court held that there involving RULE material fact OBVIOUS-DANGER was no issue of duty” element “breach of because did not base court trial painting know that Automation was did not duty” entirely on the rules holding of “no energized. H frame while it was We held in above. The court discussed disagree for two reasons. obvious-danger rule ne that the alternative *8 care to First, gated duty of reasonable conflicting Chevron’s there was evidence rule, obvious-danger appellant. Under summary judgment materials with duty to his property has no engineer’s an owner of spect presence immediate- to and known “to correct an obvious respect to invitees ly the accident and with before causes.” danger resulting from natural that con- occurred at that time. How what Wyo., 696 City Casper, infer- is resolved and what reasonable O’Donnell flict of Note, The (1985); see also P.2d 1282 drawn from the situation ences can be 898 Danger Qualified Adop-
Obvious
Rule—A
independent contractor rather than a Chev-
Secondary Assumption
tion of
employee. Generally,
of Risk
ron
Analysis, 21 Land & Water L.Rev. 251
employer
independent
“the
contrac-
(1986).
obvious-danger
But the
rule does
responsible
tor is not
for the contractor’s
apply
dangerous
when a
condition is
inadequate acts
employer
unless the
did
irj
created
the owner or his servants.
not use
selecting
due care
the contrac-
City
Casper,
O’Donnell v.
supra, at
tor.”
v. Sawyer, Wyo.,
Cline
618 P.2d
case,
1283.5 In
party
this
neither
(1980).
contends
Restatement,
148
See also
dangerous
that the transformer was
Second,
from
Torts
409.
§
all,
dangerous,
natural causes.
It was
if at
many exceptions
But
to this rule have been
way
designed,
because of the
it was
con-
recognized
prevent
which
an owner from
structed, maintained,
operated.
if
Even
delegating
duty
his
indepen-
of care
an
danger
perfectly
appel-
obvious to
dent contractor.
lant, it is
jury,
the function of the
under
appellant
Both
Wyoming
and the
Trial
comparative negligence statute,
to com- Lawyers Association, who submitted an
pare
negligence
with that of Chevron.
brief, argue
amicus
that Chevron should be
City
Casper, supra,
O’Donnell v.
vicariously
appellant
liable to
for Automa-
P.2d at 1284. Chevron should not have
tion’s
because the electrical
granted summary
been
judgment as a mat- work contracted to Automation was inher-
ter of law based on
obvious-danger
dangerous.
ently
They urge
adopt
us to
rule.
Restatement, Second,
416 and 427 of the
§§
Torts
simply
restate the time-hon-
VICARIOUS LIABILITY OF
ored rule
delegate
that an owner cannot
AN OWNER
an
pro-
contractor the
Although we have concluded that
tect others from “inherently dangerous”
appellant
Chevron’s direct
preclud
activities conducted on the owner’s land.
summary judgment,
ed
we must still dis
Keeton,
See W.
Prosser and Keeton on
potential
cuss Chevron’s
liability
vicarious
(1984).
Torts
71 at 512
Section 416
§
because
it could have a
real effect on
states:
liability
Chevron’s
after remand. See Con
Dangerous
Spe-
“Work
in Absence of
over v. Northern
Company,
States Power
cial Precautions.
supra, 313 N.W.2d at
example,
403. For
employs
“One who
con-
jury
percent
concludes that 35
tractor to do work
employer
which the
chargeable
Chevron,
fault is
percent
recognize
should
likely
as
to create dur-
Automation,
percent
and 40
appellant,
ing
progress
peculiar
physi-
risk of
appellant
then
can
recover
cal harm to others
special precau-
unless
comparative negligence
under
only if Auto
taken,
tions
subject
imputed
mation’s fault
to Chevron.
physical harm
caused
to them
Chevron would then
percent
be 60
at fault
failure of the contractor to exercise rea-
compared
appellant’s
40 percent. See
sonable care
precautions,
to take such
1-1-109, W.S.1977;
County
Board
§
though
even
provided
has
Commissioners
County
Campbell v.
precautions
for such
in the contract or
Ridenour, Wyo.,
(1981).
Richfield always duty, since the owner will 160-161 The owner “has in a sense opportunity expert have the tell the already responsibility assumed financial expert how the his should conduct busi- injuries” because the con- ness.” along passes compen- tractor his worker’s sation costs to the owner. Tauscher v. disagree. “always” We An owner does not Puget Light Sound Company, Power & expert opportunity how have to tell 430; States, supra, at Eutsler v. United contract, job. may, by do The owner (10th Cir.1967). 376 F.2d totally perform rely upon contractor to safety precautions the work with whatever Second, compensation, under worker’s If, addition, the contractor chooses. is released from tort does not affirmative duties owner assume employee’s job-related injuries. If we respect with while contract vicariously injuries held an owner liable for then, holding, performed, under our employees, then the subject greater liability effectively relinquished control. owner would be owner has *10 parties’ Chevron, primary look to contract and the lines in a very We because during period sense, performance to retained actions real control over them. whether re- argued determine control has been dissents it is both that Chevron did hypothetical opportu- The owner’s de-energization tained. control over not have control nity to retain before he executes primary lines because Automation sim- performs the contract is irrelevant. had to make ply request they a before de-energized. Urbigkit be would Justice bar, at is example, In the case there you request “How can a asks: make easier question effectively relin- no Chevron request, you a case than since either quished secondary control over the lines only have to ask?” short answer The adopted policy automatically it a requests that Chevron did not treat all any request approving by the contractor to above, As noted equally. Chevron auto- de-energize. duty Chevron had no of care matically approved requests for all de-ener- running appellant regarding to the second- gization secondary lines. These and, re- injured if he on a ary lines had been line, quests formality were a mere intended to secondary Chevron would have been de-energized. tell Chevron which lines were summary judgment. The fact entitled requirement give request This not had the did opportunity that Chevron to retain requests real de-energization Chevron control. But the of the second- control line primary de-energization were not mere ary lines not actu- does mean that Chevron discouraged formalities. such re- ally retained such control. (time quests, processing took time them Urbigkit “con- Justice states that he is employees might which the contractor's re- cerned that assume homeowner will idle), and at main times denied them. This liability for the electricians who work on implies is the kind real control which turning the home without off the electrici- corresponding responsibilities. our ty.” holding Under this concern course, may Of exer- easily allayed. The be that Chevron homeowner must de-energization in cised its control over right a tain the direct the electrician’s perfectly reasonable manner establish- or assume duties with affirmative ing proper policy following a it. safety But respect duty before he owes a jury is a decision which in protect him the electrician from hazards usually cases must decide incidental to work. homeowners Few whether the care has been expert do standard of would tell electrician how to Our holding breached. does not create job and few affirmative ab- would assume Urbigkit solute safety The Justice claims. typical duties. electrician only the duty It resolves issue. Breach of not even ask the wheth- would homeowner duty, damages causation turn off issues electricity. er he could Both adjudicated. which remain to be The assume rule parties would that the contractor merely of retained control ensures that the right to turn if he has off the duty protect on safety another’s falls necessary. parties If did thinks it something who has the person power to do agree aspect on the of their control contract, it. about service a court undoubted- would subject.
ly imply reasonable terms on that complete relinquishment A control CONCLUSION implied the reason- would be because it is duty of reason- Chevron owed direct likely The parties. intent of the able though appellant care to he was able even would not con- homeowner retain sufficient very hazard incidental to duty respect to trol to create a of care with perform. work Automation was hired hired work the electrician was retained duty arose because Chevron perform. de-ener- over a matter —the bar, appel- gization of the line. Chevron’s In the case at Chevron owed by the obvious- respect of care was not limited lant a with danger penalized. rule because the hazards were man- The reservation right of a *11 A dispute made. fact existed of to require material, equipment, safe and whether Chevron of breached care supplies by to be used the contractor is appellant. judgment Summary could not not justification without or reason. The based on only that issue. The issue owner has a vital interest in assuring disposed properly byof the district court himself will that his well be drilled effi- summary judgment on involved Chevron’s ciently, good in manner, a workmanlike negli- vicarious for Automation’s cost, at a reasonable final gence. The correctly district court held as good possible. result is Good, as as safe matter a of law that 416 and 427 of the §§ equipment is a substantial factor in in- Restatement, Second, apply Torts do not in suring performance. But, a simple Wyoming plaintiff injured is an right inspect reservation of a and se- employee of the contractor. cure that benefit does not cause the con- Affirmed in part. and reversed in tractor to employee, become the owner’s for the not owner has taken over the BROWN, Justice, concurring part; in respect details of safety with to the con- dissenting part, URBIGKIT, J., in in which employees. tractor’s joins. accepts “The contractor still and reviews agree opinion’s I majority with the hold- applications employment, determines ing that: hire, who presumably knows which «* * * ^-|n owner 0f work site who potential employees have accident right retains the the manner to direct records and past employment their histo- independent an performance contractor’s ry. contractor-employer The respon- is or assumes affirmative duties with re- safety training sible for his spect safety owes a of reasonable training performance and for in the them employee independent care to an of their provides safety work. He equip- contractor even if the is ment right and manuals and retains the doing the contractor discipline discharge or even them for perform.” hired to practices. unsafe of safety details being in control of the contractor rather however, agree, majori- I cannot with the Texaco, apparent than us that application ty’s in this case the law with minimal, Texaco’s we feel necessary, regard to Chevron. safety involvement in did not in result recently recognized We that an owner becoming the contractor Texaco’s em- may may over certain retain ployee so that Texaco became liable to aspects per- appellant responde- under the doctrine of destroying indepen- formance without Id., at superior.” at 167. relationship contractor dent Noonan v. Texaco, (1986).1 Wyo., summary reviewing judgment P.2d There When on though appeal, found that even position we owner re- this the same court sits right require court, using tained individual as the district the same materi- equipment, contractor to use safe material following al and the same standards. A supplies, such insufficient to de- party moving summary judgment has stroy the status. individual proving the burden of nonexistence of a Moreover, practice: encouraged we such a A genuine issue of material fact. material “* * * which, proved, fact is would owner who under- one have the We think an establishing refuting an
takes to see
contrac-
effect of
or
essen-
that an
operate
ought
manner
or
tor
in a safe
not
tial element of the cause
action
de-
taining
safety aspects
injury
1. I realize the Noonan
involved an
limited control over
case
instrumentality
by
performance
appli-
owned
the in-
caused
dependent
Nevertheless,
individual contractor’s
contractor,
the owner as here.
cable here.
language as
to the owner re-
dangers
electricity.
parties. Upon
asserted
inherent
Insofar
fense
concerned,
summary judgment,
of a
we view the
it matters not what
view
vantage point
from the
most favor-
appellant
employer,
record
was told to do
his
party opposing
the motion.
able
Chevron had no control over
Texaco, supra;
v.
Garner v. Hick-
Noonan
performed
the manner
(1985);
man, Wyo.,
Dudley
Seriously questioned is the rationale of sary supported work. This decision is not justification the contention that for nonlia- authority. Although majority the bility lack of control. case arises from Creation imple- of rule of in cite v. National Electric Prod- the the fashion Wolczak N.J.Super. Corporation, in the ucts duty, mented this case creates since (1961), present always opportunity the will the A.2d result in this owner have the expert expert directly contrary authority. to tell the how the should case is reasonably philosophic safe of the basic theories and “The a review provide the in place premises legal which to work relative of issues involved. and does nature of invited endeavor creating a An now occurs obfuscation op- potential of not entail the elimination delegated In this principle new control. erational hazards which are obvious case, to build Automation was contracted upon ordinary obser- visible to the invitee system in- an electrical transmission especially This so vation. [Citations.] required Such painting cluded towers. experienced is an labor- invitee completed by not painting, which was very danger hired correct the er either to use, being done time of initiation of amidst present perform or his tasks operation proximity thereafter the visible hazards. landowner Al- system. an activated electrical workei’, superiors, or his assume that the though painting activity remained then recog- possessed sufficient skill to are original re- part construction as danger involved and degree nize likely be hereafter quirement, it will according- adjust of work their methods peated other contractors as maintenance holdings unimpaired Thus line of ly. during usage oil field has life of provide a to the effect that the Then, sufficiently life. hereaf- extended reasonably working place for em- safe ter, always dangerous in carelessness is independent contractor ployees of an work, many electrical service to known hazards which does relate occupations. knowledge by the Care and or incidental employed expectancy is the expert perform. the contractor hired em- bargain whereby the contractor [Citations.] It is from the record ployed. present clear significant “It is to note that each of *14 to climb on that no reason existed Jones explainable decisions is aforementioned platform, v. equation, in terms of the in Meistrich Attractions, Inc., 31 N.J. Casino Arena Gustanson, Holdaway supra, which v. 48-50, 44, (1959), assump- 90 of 155 A.2d approved in previously the court Noonan primary tion of risk in sense and lack its stating despite rule reversal proper as of or failure to breach the Court, by the Circuit stated: doctrines, These traceable to owed. “Futhermore, obligated Amoco is not master-servant, short- law of constitute a haz- protect of from CWS description species hand of that of occu- ards which incidental or which, pational because of its obvi- risk per- very CWS was hired which nature, to the ous its intimate relation AnHeuser-Busch, 328 form. Vecchio[v. being presumed performed, task and the 714, (2d activity Cir.1964).] F.2d 718 it, expertise person encountering of the injury by led to the was conducted injury formerly non-remediable danger of the CWS and the arises out compensable solely now sulted and is situation, activity In such a itself. through of workmen’s com- the medium not responsibility * * * is that of CWS and pensation laws. The extension F.Supp. at Amoco.” 546 233. concept employ- realm this to the of the itself, not er-independent principle, contractor tort relation- That in reversed ship by Holdaway obvious in v. amply warranted the Circuit Court which supra, reliance on the skills stat- Company, Amoco Production generally perform hired a task one ed: “ * * * employer’s work.” unrelated to the own the con- Regardless of whether A.2d 417-418. 168 at indepen- purports to make tract CWS however, contractor, pro- Attractions, dent it will Meistrich Arena v. Casino from if it be inferred Inc., A.2d A.L.R.2d tect Amoco 31 N.J. 155 82 by thé (1959), court facts and circumstances revealed 1208 case considered this relationship be- thoughtful and the real opinion, affords a evidence that
905
rule,”
tween Amoco and CWS was that of mas-
as the article attributes proportion-
ter and servant.”
test without
exception rule quoted Holdaway v. Gus expert employed perform
tanson dangerous expo
the work from which the sure arises. McKee v. & Power Pacific Co., (1966);
Light
Wyo.,
sons 422 Corp., v. Amerada Hess F.2d 610 (10th Cir.1970); Texaco, Pruitt, Inc. v. 396 AYRES, Douglas Appellant (Plaintiff), (10th Cir.1968). F.2d 237 also See Sher v. County,
man
Platte
787
Wyo.,
v.
P.2d
Wyoming, Appellee
STATE of
(1982);
Wyo.,
Bluejacket
Carney,
v.
(Defendant).
(1976);
Misner,
P.2d 494
LeGrande
Wyo.,
(1971);
Factually, what announced court in this case its decision is that 1,May 1986. Chevron, any request, the absence of should have made easier for Automation requested operation have that the
oil be danger field shut down to avoid to a might climbing
careless who
on a platform, transformer that the so tow- support
er paint- underneath could be request
ed. you How can make a easier request,
than you since in case either
only have to ask?
Despite disafinity dispo- this writer’s by summary-
sition of actions decision,
judgment it is submitted that
decision the trial court in this case was justified.
appropriate and well court, reversal the trial we now
create a new rule with nefarious and inde- implications.
terminate It would seem that
this court sets the law adrift somewhere Sargasso
between the Matagorda Sea1 and Compare
County, Texas. this writer’s dis- opinion
senting Foster, in DeJulio v. (1986), Docket,
P.2d 182 with On the
“There is more to
mess in U.S. court-
greedy attorneys
rooms than
and vindictive
Costin, Laramie,
appellant.
Robert W.
Greene,
juries.
hang-
Consider
...”
McClintock,
Gen.,
business, Forbes,
7,
A.
ing
April
Atty.
A.G.
Gerald
judges of
1986,
62, 64,
Stack,
Gen.,
County,
Atty.
Ren-
Matagorda
Deputy
at
wherein
John W.
Texas,
as,
neisen,
Gen.,
plaintiffs
Margery
B.
Atty.
described
“Where
Sr. Asst.
1217,
States,
Carter,
(1986),
Wyo.,
1. See
450 U.S.
v.
714 P.2d
1222 n. 2
United
Albernaz
(1981),
J., dissenting.
Urbigkit,
101 S.Ct.