*1 Thus, we the trial court’s also reverse open of law that the and obvious
conclusion WALTON, Plaintiff-Respondent Robert Arring- danger presented a doctrine bar to Cross-Appellant, prosecution of ABC. ton’s his claim summary, we reverse and remand this CORPORATION, POTLATCH proceedings this
case for consistent with Defendant-Appellant Arrington E. opinion. Costs Norman Cross-Respondent. Arrington, appellants/cross- Helen No. 17177. respondents.
Supreme Court Idaho. Aug. 1989. JOHNSON, J., concurs. Rehearing Oct. 1989. Denied HUNTLEY, J., prior to fully concurred resignation August sat, SHEPARD, J., partic- did not but untimely
ipate opinion to his this due
death.
BAKES, Justice, dissenting: Chief opin-
I Part I of the Court’s dissent from trial court erred
ion which concludes the
ruling Arrington Brothers Construc- Co., (ABC),
tion Inc. had violated involving regulations in the accident subcontractor, Arrington. E. Norman per should
The doctrine of apply independent contractual to the ABC, contractor,
relationship between the Arrington, for reasons
and Norman E. dissenting opinion my out in
set Walton 892, 781 P.2d Corp., 116 Idaho
v. Potlatch (1989). I majority opinion,
As to Part II of the ruling in Harri-
disagree with this Court’s 588, 768 Taylor, P.2d
son v.
(1989). proper rule was I believe
that contained Bates v. Eastern Center, 114 Idaho
Regional Medical P.2d and would affirm trial judgment
summary issued
court on that basis.
Fiberglass paper pulp at Potlatch’s fa- Lewiston, cility appeals Idaho. Potlatch favor, from a verdict Walton’s claiming the erred in its instructions court care, applicable standard in its on in other admission of certain evidence and matters. (a corporation
In the fall of Potlatch engaged manufacturing business pulp products), paper hired Western Fiberglass apply fiberglass Industrial the interior dioxide chlorine bleaching job dome. The tower was performed during plant After shutdown. working interi- Western commenced on the dome, or of the Potlatch also hired Western apply fiberglass to the exterior. dome’s required Potlatch Western to work Pot- latch’s and to comply direction with Pot- However, safety plan. latch’s safety gave instruction Potlatch to West- safety ern was a instruction verbal on shields, hats, gear, face hard reporting to aid, first like. September
Prior to plant shut- work, fiberglassing down and Western’s representatives Potlatch were aware that chlorine gas leaking dioxide was from the top bleaching water seal at tow- er dome. from were Officials Western gas aware leak. owner, Walton,
Western’s Chuck em- ployed physically pre- three workmen to pare top dome for application the fiberglass. They were: Clements, McNichols, Brown & Lewi- Walton, Kerry Bob Mike Evett and Har- ston, defendant-appellant cross-respon- for ding. The three workmen attended a safe- McNichols, argued. dent. E. Michael ty meeting prior going job site to the Feeney, Lewiston, plaintiff- Clark & forget wherein Bob Walton was told not respondent cross-appellant. Paul T. Clark safety glasses, to and to plugs, his use ear argued. keep preparation his hard on. hat work, picked type of Bob Walton HUNTLEY, Justice.* yellow always face he had taken to mask Potlatch, appeal personal injury This is an from mask was fresh air not a brought by Harding action Kerry Robert mask. Walton’s co-worker Walton Corporation. the Potlatch workmen type Walton main- took same mask. The injuries approximately tains that he sustained after he to the mill at went p.m. inhaled chlorine dioxide while he was work- 1:00 on the afternoon of October ing up as to the Western Industrial 1985. Plaintiff Bob Walton went * J., opinion prepared Huntley, August This resignation prior voted on the Court to his argued respiratory hazards. Walton also afternoon at
tower for the first time that safety prepared and fur- approximately p.m. He his mask that the standards 1:30 wore army or incor- had in the Potlatch did not contain over full beard he nished pulp or the ANSI porate as did other friends worked *3 paper plant. had not read the Walton standards. yellow label on of the three face masks (in Instruc- jury court instructed the The opened label he and used. The 9) OSHA tion No. that violation of certain might provide warned that the masks a regulations and ANSI standards constitut- satisfactory physical seal certain face in- negligence per ed se. The court also characteristics, a such as beard. (in 7), that jury Instruction No. structed the tower, While on the Walton encountered duty of ordi- Potlatch owed the the coming dioxide from the center (in chlorine The went on nary care. court1 then diox- near the water seal. Chlorine a shaft 8), jury that No. to instruct the Instruction gas which can have numerous ide a premises an owner of owes people on come into harmful effects ordinary to exercise contractor skin, it. It irritate the contact with can safety, management, inspection, care eyes, the tracheal/bronchial tract and the warnings. Fi- provision necessary Although deeper lungs. recesses of the put on nally, the court allowed Walton people to chlo- exposure most recover from instruct- of Potlatch’s wealth and evidence dioxide, rine some never do. punitive damages. In jury ed clos- on general ing argument asked for Walton put on a Walton had been trained $568,920 plus his medical and damages of encountering when mask and leave an area pharmaceutical bills. so on this occasion. gas, he did not do but goggles Although wore his Walton jury negligence in fol- The attributed tower, he on the mask the entire time was 15%; lowing percentages: Walton Potlatch it the chlorine dioxide was so bad jury The denied and Western 60% 25%. his and the back of his throat. burned nose $375,- him punitive damages and awarded discomfort, complet- spite Walton his damages. The court ulti- general 000 in didn’t feel he was job ed because he judgment on verdict mately entered danger; part him for his boss was with $248,- in the amount favor Walton employees in the time and he.saw Potlatch reducing jury’s award for 666.32 after Although extreme Walton was area. negligence and for comparative Walton’s discomfort, He he drove home after work. Pot- compensation his benefits. worker’s emergency hospital room the went to the or new latch filed motion for remittitur day. next weigh trial, requesting that the court exposure Wal- it would have As result of the chlorine decide what evidence and re- compare that with what ton suffered chemical bronchitis then awarded and disease, resulting in dimi- court de- airway actually strictive awarded. point pulmonary indicating function that it nution of the motion without nied everyday carry is not able on it would have award- he what had determined home, in man- and social activities work the trier of fact. Potlatch ed it been had previously enjoyed. ner he appeals. against Potlatch on suit Walton filed I. as- alleging negligence and
May the trial court first claims that negligence Potlatch that Potlatch’s serting further jury that viola- when it instructed the erred willful. Walton gross, wanton and regulations and ANSI tion certain OSHA Safety sought Occupational to introduce negligence per constitute (OSHA) regula- standards would Administration and Health argu- supports this claim with In- se. Potlatch Standards American National tions and (1) regulations should ments that: OSHA (ANSI) evidence at standards into stitute per negligence alia, as evidence of trial, show, be used that Potlatch inter place too much jury will warning any adequate because provide failed to emphasis (2) regulations; on those If B. can be used as evidence third criteri- contends that the se, negligence per they can used plaintiff must be a member on—the
to establish the
of a direct em-
protected
satisfied be-
class to be
not—is
ployer
employee; (3) private
to an
tort ac-
employee of
cause Walton was not an
Bob
brought against
owners,
tions
land
such
was a
disagree;
We
Walton
Potlatch.
case,
properly governed
instant
protected.
member
the class to be
law;
only by
finally,
the common
even if
regulation
violation
of an OSHA
a non-
In Brennan v. Underhill Construction
se,
negligence per
constitutes
Cir.1975),
(2d
Corp.,
F.2d 1032
the 2nd
*4
by
trial court
instructing
erred
the
on circuit stated:
wrong
regulations.
the
OSHA
question
then
important
We turn
to the
disagree
While we
with
of
the first three
requires
a violation
whether
of the Act
arguments,
we find sufficient
proof
to
of
of a
addition
the existence
cause to
and
reverse
remand for new trial
hazard,
exposure
evidence of direct
to
upon
argument.
based
fourth
the
We dis-
by
the
the
of
employees
hazard
the em-
cuss each of the four in turn.
ployer
responsible
is
the
who
for
hazard.
Concededly,
language
...
the
A.
“general duty” clause of the Act ...
[is
regulations may
OSHA
be used as
employer’s duty
an
runs to “his
that]
negligence per
evidence of
se in
an
suits
employees”
duty
rather than a broader
employee
of a contractor
owner
the
keep
to
a work
employ-
area safe for
case,
of the work site.
In this
court
the
having
ees
access to
In
that area.
addi-
properly
the jury
instructed
on certain
tion,
Act narrowly
“employ-
the
defines
regulations,
OSHA
but
the instructions
employ-
ee” mean “an
an
to
of
overly
imposed
were
they
broad
that
employed
er
is
a business of his
upon
duties
Potlatch which
properly
employer which affects commerce.” 29
to an
only
employ
attributable
immediate
652(6).
U.S.C. §
Therefore,
er.
we reverse and remand
general
But to draw from this a
rule that
with
to
carefully
instructions
more
tailor
under
standards
the Act can
violated
the
duty
instructions as to the
of care owed
only
employer’s
a cited
own em-
when
by Potlatch.
ployees
directly exposed
are shown to be
609,
Galey,
Sanchez
112
Idaho
733
to
of a
seems to
a violation
standard
us
P.2d 1234
this Court
ruled
wholly
It
to be
unwarranted.
also fails
regulations may
be used to establish
effect to the
under
give
to
clause
negligence per
for which
se
the defendant
cited,
was
Dick-Underhill [Defendant]
respond
can be
plaintiff,
held to
to the
(2)
654(a).
subparagraph
of
That sub-
§
provided that four criteria are
The
met.
requires
paragraph
employers to “com-
(1)
criteria are:
the statute
regulation
or
ply
occupational safety and health
clearly
required
must
define
standard
promulgated under the Act.”
standards
conduct; (2)
of
the statute
regulation
or
duty
specific
comply
This
to
with the
must
prevent
have been intended to
Secretary’s
way
standards is in no
limit-
type of harm
omis-
the defendant’s act or
ed to situations where a
of a
violation
caused; (3)
sion
be a
must
exposure
linked
of
standard is
his em-
persons
member of the class
the statute
ployees
duty
to the hazard.
It
over
(4)
regulation
designed
protect;
general
duty
and above
his own
proximate
the violation
have been
must
654(a)(1). Morey,
under
injury. Sanchez,
cause
See
supra,
§
Duty
Occupa-
the 9th Circuit referred opinion and stated: Dictionary indepen- an Black’s defines interpretation of the agree
We this with dent contractor as: It remedial statute. facilitates the broad who, in one exercise of Generally, de- Congress Act purpose which to do independent employment, contracts possible far is “to assure so clared piece according of work to his own in the every working man and woman subject employer’s to his methods and working condi- safe and healthful Nation product or only end control as to final 29 As this court tions.” U.S.C. 651. § Suk, v. his Hammes result work. stated, “Congress clearly to intended has 233, 478, 480, 481 190 N.W.2d 291 Minn. fore- require employers eliminate all [(1971)]. One who renders service preventable hazards.” Cali- seeable oc independent employment or course of and Ballast Co. Stevedore employer’s de cupation, and who fornia follows Cir.1975). (9th OSHRC, F.2d 988 517 work, not results only sires as to agree We with Commission be whereby it is to accom as to means best be policy this can Co., 217 Sparks v. L.D. Folsom plished. effectuated placing responsibility hazards 640, 643 Cal.Rptr. Cal.App.2d create them. on those who Far [(1963)]; Housewright v. Pacific 259, 40 Inc., Cal.App.2d East Line OSHA, as underlying principles of The (1964)]; Dowling Cal.Rptr. [ and, Beatty, supra, delineated Brennan York, La. New Ins. Co. Mutual was fully applicable to case. It are this Life [(1964)]. App., 168 So.2d bleaching dome that tower person is a hence, independent An contractor gas; dioxide leaked chlorine do another to some- gas who contracts source of Walton’s harm—the —was thing controlled him who is not Potlatch’s, Wal- but or within Western’s subject the other’s nor knew the other Potlatch officials control. ton’s respect right control with not disclose Western. the leak but did performance physical conduct in testimony gas was leak There was may not may He or undertaking. fore- could have hazard Second, on acts or omissions Restatement, premised its verdict agent. be an chargeable only to Agency, properly 2. § distin- Fiberglass as Industrial Western case, more In the instant Western was guished from Potlatch closely bound to Potlatch than a normal independent contractor would have been. is rendered on the verdict When required to This is because Western was instructions, appro- basis incorrect comply work at Potlatch’s direction granting a new priate remedy is the safety plan, than with Potlatch’s rather trial. being according to able to work its own 59(a) pro- Procedure Idaho Rule of Civil Thus, independent methods. there is even part: pertinent vides in greater regula- to find the reason 59(a). New trial —Amendment of Rule applicable to this case than there tions was judgment may trial new —Grounds.—A Teal, supra. any parties granted to all or part and on all or of the issues C. any following action for reasons: foregoing law and facts vitiate Irregularity proceedings arguments. Potlatch’s first three This court, jury party adverse leaves Potlatch’s final contention on this order of the court or abuse discretion error, assignment of that the trial court party prevented which either erred in its Instruction No. 9 on the OSHA having from a fair trial. regulations by making them over broad in utilizing the sense of *6 law, occurring 7. Error in at the trial. impose ap duties on Potlatch which could upon Any motion for a new trial based ply only employer the immediate under any grounds in of the set forth subdivi- plain wording. agree their We with Pot- 1, 2, accompanied by 3 4 must be sions and, therefore, regard latch in this reverse stating an affidavit in detail the facts for new trial. upon support in motion for relied such 9,No. pages Instruction some seven Any a new trial. motion based on subdi- length, twenty-six set forth verbatim sec- visions 6 or 7 must set forth the factual regulations. tions or subsections of the It grounds particularity. therefor with opened following paragraph: the 20, 1985, July March effective [Amended you If find that Corporation Potlatch 1, 1985.] created the hazard or had control over giving Here the of Instruction No. 9 consti- exposed the condition which worker irregularity tuted such and error law any following a violation of of the de- 59(a). bring the case within Rule laws, apply scribed then laws these Dell, 250, 258, In Idaho 404 Potlatch, Kuhn v. 89 regardless of whether (1965) P.2d 357 this Court held: employed by worker was Potlatch. apply Indus-
These laws also
to Western
jury
is
error to instruct the
It
reversible
Walton,
Fiberglass/Chuck
trial
and the
on the doctrine of last clear chance
(Emphasis
plaintiff.
supplied.)
no substantial evidence to
where there is
Milsap
support the doctrine. Graham v.
subsequently
The instruction
contained
supra;
179,
(1955)],
Idaho
The trial court is under a instruct expansion proper stan- every repetition rec- jury theory on reasonable dard, 7, imper- stated Instruction No. ognized supported by law that is at trial. Stewart, 69 Idaho 125, Addey missible under v. Borden, Hodge 91 P.2d v. Idaho 417 (1949).2 357, 364, 207 498 P.2d (1966); Domingo Phillips, 75 v. 87 Idaho 55, Pulice, (1964); P.2d 297 390 Wurm v. Co., 98 Ida- Ryals In v. Broadbent Dev. 359, (1960). 82 P.2d 1071 Idaho 353 392, ho P.2d dealt 565 982 this Court However, giv- instructions should not be Riles, In a con- with a similar situation. en on evidence from which are based employee tractor’s sued owner Slininger, Idaho trial. Bratton v. 93 premises working. where the 248, (1969); P.2d 383 v. Kir- 460 Fawcett appeal, On defendant owner maintained (1968). P.2d 714 by, 92 Idaho 436 jury regarding that the various instructions given should not be on Instructions em- duty the owner’s toward legally Corey is not sound. theory repetitious overly empha- ployee were Wilson, plaintiff’s theory 454 951 93 Idaho P.2d of the case. sized (1969); rejected argument on the Reservoir v. This Court Cassia Creek Co. ground jury per- each instruction Harper, P.2d [91 legitimate a “different function.” formed (1967)], supra. can case. The same be said this incorrectly An states instruction which No. the court Instruction informed provides grounds ordering the law jury duty of care a landowner basic Wilson, supra; Corey a new trial. Potlatch is a land- owes to invitee. Distler, P.2d Walker v. least, Walton, very could owner and (1956); 59(a)(7). I.R.C.P. So, be described as an invitee. Instruction Accordingly, we and remand reverse legitimate In- No. 7 served a function. to re-tailor new trial with directions No. 8 informed the struction to fit instructions on is also duty a landowner who any specific asserted the evidence as on employs to a contractor he to work owes Potlatch. breach of land was also a *7 premises. the Potlatch contractor, i.e., employed owner which II. Fiberglass Corporation, Western Industrial premises. perform to work on Potlatch’s assignment er Potlatch’s second of Thus, No. 8 served a different Instruction the ror is that Instruction No. 8 overstated error legitimate We find no and function. duty Under Ida Potlatch owed to Walton. giving in of the two instructions. the duty an invitee a ho law a landowner owes keep reasonably premises to its in a safe III. hidden con condition and to warn of assignment error dangers owner of of cealed which the knows Potlatch’s third admitting by exercise of is trial court erred in or should have known of that the punitive support an award of See, DeAtley, care. evidence reasonable Curtis ¡ there (1983). damages Potlatch asserts P.2d 1089 because a) premises in conveyed management essentially the of such the cor- No. 7 Instruction jury; exposing employees to rect law to the the instruction reads: avoid such order to harm; duty plaintiff, Wal- unreasonable risk b) It the Robert was ton, defendant, pur- Corporation, premises inspection the and the Potlatch Fiber- discovering dangerous and Chuck glass, rence, Industrial Walton/Western conditions pose of and time of the occur- before at the an- cause to the owner has reasonable when safety ordinary care for the to use conditions; ticipate such the existence of plaintiff. the c) reasonably premises in a have his to safe Instruction No. reads: condition; and employs premises a contrac- An owner defects, d) give warning of to concealed thereon, re- perform but who tor to work the exercise which are known to owner premises control of the where mains in ordinary have discovered care could been done, being work is owes added.) (Emphasis by the owner. ordinary care: contractor a to exercise level, submitting court erred in was no evidence a “harmful state approval jury any mind” or evidence or rat- and additional issue to the absent management ification the conduct of the issue on evidence should submit employees. its Potlatch asserts the admis- re-trial. testimony may of that have colored
sion jury’s approach to other issues. IV. testi- Our view of record uncovers no assignment fourth of error requisite mony which would establish that the trial court in its failure erred specific by any “harmful state of mind” it had calculate what would have awarded employee of Potlatch. When asked fact, it the trier of and in the court’s been point testimony, to such counsel Walton’s compare with what failure that award to state: only able of deter- jury purpose awarded I say I think that as a reasonable infer- mining if the excessive. verdict was made all ence can be that Potlatch knew remanding reversing Since we are things these their cor- least within trial, for new this issue is mooted and we porate say structure. that one Not to to address it decline now. individual knew it. It is a situation new trial. right hand didn’t Reversed remanded for know what left attorney doing they appellant. I think that No fees hand was Costs all general violated rules of awarded. they statutory violated the they obligated rules that to enforce. JOHNSON, J., and TOWLES Tem., JUDD, JJ. Pro concur. testimony There was a conversation about Walton, having place taken between Chuck TOWLES, Tem., specially Justice Pro Solders, plaintiff’s employer and one Bob concurring. maintenance a chlo- planner about majority I concur conclusion of the leak a day rine dioxide or two before that the case must be remanded for new subject testimony incident. is dis- trial due to Instruction No. 9 on OSHA puted, but it establishes no event regulations. malice or harmful mind. state of However, in court’s In- considering the Cheney v. Palos Investment Verdes struction Nos. 7 8 which defined 897, 905, Corp., 104 Idaho 665 P.2d invitee, duty to I would landowner’s (1983) this Court stated: caution the trial court on remand punitive damages An award of will be *8 cognizant of the recent decision of this appeal it only sustained on when Taylor, v. 115 Idaho Court Harrison in man- shown that defendant acted a 588, (1989) 1321 abolished 768 P.2d which “an from ner that was extreme deviation “open hazards” defense of and obvious conduct, and reasonable standards of negligence by a claim for an invitee to performed by that the act was the defen- against a landowner. understanding dant with an of or dis- regard likely consequences.” its BAKES, Justice, concurring v. Max Chief Rouse & North- Sons
Hatfield west, dissenting in supra, part part: 100 606 and Idaho [840] supra. P.2d damages must be that the defendant act- ed with ice, mind, gence.” oppression, [944] whether an The (Citations omitted.) at 955 extremely justification that state be termed [ fraud harmful ]. See gross Linscott, state of punitive negli- “mal- with which holds were that could Court’s erly imposed I concur the conclusion reached extracted from opinion only apply in Parts that duties today. Further, I Instruction II, upon to the OSHA III and IV No. 9 plaintiff’s in Part regulations improp- concur of the which 1(C) im- Fi- employer, Industrial there was no mind” estab- mediate Western Since “state of (Western). However, disagree I rising berglass in the instant to that lished case 900 etc., Labor, (9th Secretary 577 F.2d 534 1(A) (B) Parts that
with
and
which conclude
of
Cir.1978),
regulations
position. Both of
may
support
evi-
its
“OSHA
be used as
Secretary of
by
recognize
cases
that the
negligence per
dence of
se in suits
an
those
by
prove
can
an OSHA
employee
the owner Labor
violation
a contractor
showing that
has been committed
a hazard
employer
of the work
is not the
site” who
“the
acces
and that
area of the hazard was
injured employee.
employ
sible to
the cited
Previously,
of Sanchez
in the case
employers engaged in
er or those of other
(1987),
Galey,
112
Idaho
Brennan,
undertaking.”
See
a common
this Court held that violation of an OSHA
Notably,
F.2d at 1038.
513
both
regulation
negli-
provide
can
the basis for a
by
majority
with
cases relied on
deal
per se instruction where the claimant
gence
authority
Secretary
Labor
However,
is an
of the defendant.
OSHA,
under
and neither case deals with
justify negligence
per
order
se instruc-
rights
injured
parties,
third
nor do
law,
under
must
tion
defendant
neg
they specifically deal with the issue of
“positive
prohibition.”
statutory
violate
ligence per
Those
not hold
se.
cases do
requirement
by the
This
was mandated
that, merely
an
can be
because
Brixey Craig,
cáse
49 Idaho
seminal
Secretary
violat
cited
Labor for
288 P.
and
neither been
has
ing
the ab
regulation,
an OSHA
even in
relaxed,
subsequent
though
nor
overruled
employees,
sence of harm hazard to his
additional criteria. See
imposed
cases have
authority
Secretary
such
Smith,
Kinney v.
P.2d
holding
Labor is tantamount
to a
that the
(1973). Here, however,
Potlatch vio-
an in
same violation can be
basis of
statutory
positive
prohibition
no
be-
lated
per
on
some
struction
regulations
those
cited in the
cause
OSHA
party.
third
regu-
majority opinion
general
OSHA’s
The
is taken
those courts
better view
“employer”
lations are
toward the
directed
de
hold that OSHA
“employee” exclusively, and not
protect only
employer’s
own
signed to
parties.
third
Ship
employees. Melerine v. Avondale
majority’s
disagree
I further
with the
Inc.,
Cir.1981);
(5th
yards,
F.2d 706
(Walton) is “a
conclusion that
OSHRC, 516 F.2d
Anning-Johnson Co. v.
regula-
member
the class
OSHA
Horn
Osborn
(7th Cir.1975);
v. C.L.
I
protect.”
believe
tions were intended
Co.,
(5th Cir.
Construction
furnishing party non-employee a third 1(A) Accordingly, I dissent from Parts se) weapon (negligence per a hith- (B) ap- opinion of the Court’s part erto no of his common law arsenal. giving negligence per proves of the a instruction this case.
Furthermore, negligence the effect of a per deprive litigant se instruction is to right jury question
his trial on of his conduct which is reasonableness subject negligence per of the se instruc- Thus,
tion. of a two essential elements prima negligence duty and facie case— away jury.” breach—are “taken from the Torts, (5th p. Prosser & Keeton on See Chen, E. and Nelcine L. John CHEN ed.). By negligence per such a se instruc- Plaintiffs-Appellants, effect, jury, tion the is directed not to person’s consider the reasonableness of the acts, having the court concluded that CONWAY, Robert J.
violating “positive prohibition” statutory Defendant-Respondent. unreasonable, person’s conduct is No. 17735. negligent, therefore as a matter of law. strong public policy Given the in favor of Appeals of Court of Idaho. trials, 1, 7, jury as rooted in Art. § Constitution, negligence per se in- Oct. approved structions should where a
party clearly positive has violated a statu-
tory prohibition. equivocal Given the na-
ture of whether or not has
authority, regula- much less intended its apply parties might
tions to to third employer,
come in contact with the rather employer’s employees,
than the own
strong policy favoring jury in this state
trials on issues of fact should not be application
usurped by an overbroad negligence per
doctrine of se. Walton and position adequately
others safe-
guarded by the laws of liability,
landowner and these doctrines in protect employer by subjecting
turn liability only
him to when a finds his However, by
conduct to be unreasonable. over-expansive application of the doc- negligence per non-employ-
trine of se to
ees, right by jury on the to trial de-
reasonableness of its conduct has been
nied, I of Art. believe violation § Young,
the Idaho Constitution. Steed (1989). The