This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1552

 

 

John Huiras,

Appellant,

 

vs.

 

Robert W. Carlstrom Company, Inc., defendant and third party plaintiff,

Respondent

 

vs.

 

Security Products Company, third party defendant,

Respondent.

 

 

Filed June 1, 2004

Affirmed

Anderson, Judge

 

Blue Earth County District Court

File No. C3-02-1238

 

Daniel J. Heuel, O’Brien & Wolf, L.L.P., P.O. Box 968, Rochester, MN  55903-0968 (for appellant)

 

John M. Riedy, Jorun Groe Meierding, Maschka Riedy & Ries, P.O. Box 7, 200 Union Square Business Center, 201 North Broad Street, Mankato, MN  56002-0007 (for respondent Robert W. Carlstrom Company, Inc.)

 

Mark M. Suby, Jansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., 3900 Northwoods Drive, Suite 250, St. Paul, MN  55112-6973 (for respondent Security Products Company)

 

            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant was injured while moving a safe.  Appellant’s employer was responsible for ensuring that the safe was moved.  Nonetheless, appellant argues his employer’s cocontractor owed him a duty of supervision and a warning.  The district court ruled that appellant’s employer’s cocontractor did not owe appellant a duty.  We affirm.

FACTS

            In this negligence action, appellant, John Hurias, was injured when a safe he was moving fell on him.  Appellant is an employee of respondent, Security Products Company (respondent-Security).  Respondent, Carlstrom Company, Inc., (respondent-Carlstrom) is a general contractor.  Respondent-Security is a company that procures and installs equipment for financial institutions. 

            In 2000, Valley Bank decided to renovate a building it owned so that it could be used as a bank.  Valley Bank hired respondent-Carlstrom to remodel the building and hired respondent-Security to procure and install specialized equipment for the bank.  The two companies had separate contracts directly with Valley Bank, both companies reported directly to bank representatives, and neither company had the authority to direct the work of the other.  Significant to this case, respondent-Security coordinated the purchase of a safe with the bank and not with respondent-Carlstrom.  All of the testimony in the depositions, including the depositions of appellant’s supervisors (one of whom is also appellant’s brother), was that respondent-Security worked directly for Valley Bank and was not a subcontractor to respondent-Carlstrom; as such, respondent-Carlstrom had no authority or control over any of respondent-Security’s employees. 

            Appellant’s job was to install equipment for respondent-Security.  It was not appellant’s job to move safes; respondent-Security hired a subcontractor to move safes because they are heavy and therefore dangerous to move.  Respondent-Security has a contract with Hamby Transfer, Inc., to move safes. 

            On December 6, 2000, Hamby Transfer, Inc., delivered a safe to the bank and placed it in an area commonly referred to as the vault room.  The employee from Hamby Transfer testified that someone he believes to be from respondent-Carlstrom showed him the location of the vault room.  Later, Hamby Transfer replaced the original safe with the safe at issue.  When the safes were delivered to the bank, the renovation was not complete, and Hamby Transfer expected to be contacted by respondent-Security to move the safe so that the renovation could be completed.  The safe at issue weighs approximately 5,000 pounds.

            On January 15, appellant and another employee of respondent-Security moved the safe in order to accommodate respondent-Carlstrom’s need to continue working on the floor of the vault room.  The floor was sloped and was being leveled and carpeted.  This initial move was accomplished without incident.

            After this work was accomplished, respondent-Carlstrom’s job superintendent, Bernie Davey, told appellant that the safe needed to be moved to its permanent position.  Additionally, Davey called his contact at respondent-Security, who was also appellant’s supervisor, to request that the safe be moved.  Appellant also called his supervisor to determine the final position for the safe; appellant did not inform anyone at respondent-Security that he intended to move the safe. 

            On the day appellant was injured, Davey again told appellant that the safe needed to be moved so that the floor could be finished.  Davey did not call respondent-Security because he believed that appellant was there to move the safe.  Appellant agreed to move the safe, and began to do so with the help of another employee from respondent-Security.  Respondent-Carlstrom had no oversight of this work, and no one working for respondent-Carlstrom watched, let alone supervised, the move. 

            While appellant was moving the safe, it tipped over and fell on him, seriously injuring him.  Appellant believes the reason it fell was because the floor was sloped and uneven; appellant concedes this condition was open and obvious and that he knew of it.  After appellant was extricated from under the safe, respondent-Carlstrom helped to right the safe and was reimbursed by respondent-Security for this service.  After he recovered, appellant was told that it is company policy to not move safes but to have Hamby Transfer move safes.   

            At various times, Davey called appellant’s supervisors to discuss scheduling and exchange information.  Usually, respondent-Carlstrom had more employees and contractors at the jobsite than respondent-Security.  Davey stated that he was in charge of the jobsite but did not claim any authority over appellant or anyone else working for respondent-Security.

 

 

D E C I S I O N

            Summary judgment is to be granted if there is no genuine issue of material fact and one party is entitled to judgment as a matter of law.  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001).  On appeal, the evidence is examined in the light most favorable to the party against whom summary judgment has been granted.  Id.  There are four elements to negligence, all of which must be established to survive a summary judgment motion: (1) existence of a duty of care toward the plaintiff, (2) that duty was breached, (3) the plaintiff suffered damage, and (4) the breach of that duty caused the plaintiff’s damages.  Id.  The existence of a duty is a question of law and is therefore subject to de novo review.  ServiceMaster of St. Cloud v. GAB Bus. Serv.s, Inc., 544 N.W.2d 302, 307 (Minn. 1996).

            “The existence of a legal duty to act depends on two factors: (1) the relationship of the parties, and (2) the foreseeability of the risk involved.”  Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn. 1999).

Typically, the plaintiff is in some respect particularly vulnerable and dependent on the defendant, who in turn holds considerable power over the plaintiff’s welfare.  To reach the conclusion that a special relationship exists, it must be assumed that the harm to be prevented by the defendant is one that the defendant is in a position to protect against and should be expected to protect against.

 

Donaldson v. Young Women’s Christian Ass’n of Duluth, 539 N.W.2d 789, 792 (Minn. 1995) (citation omitted).

1.  Control over work

            Appellant argues that respondent-Carlstrom owed him a duty because of the degree of control respondent-Carlstrom retained over the work.  Appellant relies on Thill v. Modern Erecting Co., 272 Minn. 217, 136 N.W.2d 677 (1965).  In Thill, one general contractor controlled the entire job.  Id. at 219, 136 N.W.2d at 680.  One of the subcontractors erected a crane, and the foreman for the general contractor inspected and approved the erection of the crane after it was finished.  Id. at 223, 136 N.W.2d at 681.  Later, the crane collapsed due to negligent construction and injured the employee of another subcontractor.  Id. at 220, 224, 136 N.W.2d at 680, 682.

            The supreme court concluded that the general contractor was not vicariously liable for the employee’s injuries because the general contractor did not have “detailed authoritative control” over the erection of the crane.  Id. at 225-26, 136 N.W.2d 683.  But the supreme court ruled that, because the general contractor “retained the general control and supervision of the work,” it was directly liable as a possessor of land.  Id. at 226-27, 136 N.W.2d at 684.  The court reasoned that there was a duty because the general contractor’s foreman had inspected the crane, was familiar with cranes, and had the authority to make changes to it.  Thill, 272 Minn. at 227-28, 136 N.W.2d at 684-85.  Thus, the court concluded that the general contractor was in a position to prevent the injury and that the general contractor’s negligence contributed to the injuries.  Id., 136 N.W.2d at 684.

            Shortly after Thill, the supreme court decided Rausch v. Julius B. Nelson & Sons, Inc., 276 Minn. 12, 149 N.W.2d 1 (1967).  In Rausch, a school hired three different contractors to serve three different functions, general construction work, mechanical work, and, electrical work.  Id. at 14, 149 N.W.2d at 3.  One of the defendants in that case was the general construction contractor; the plaintiff’s decedent was an electrician working for the electrical contractor.  Id., 149 N.W.2d at 3.  After staining a number of doors, one of the defendant’s subcontractors, also a defendant, stacked them to dry.  Id., 149 N.W.2d at 3.  The electrician crawled under precariously stacked doors.  Id. at 214-15, 149 N.W.2d at 4.  The stack fell, killing the electrician.  Id. at 215, 149 N.W.2d at 4.

            In examining the defendant’s control over the work, the supreme court stated that the defendant did not control the premises although it did ask trespassers to leave, the defendant allowed its subcontractors to decide how to do the work, and that the three “prime contractors” kept in touch with, but did not control, each other.  Id. at 16, 149 N.W.2d at 4.  The court characterized the relationship between the prime contractors as “cocontractors” because no one contractor was responsible for the entire job.  Rausch, 276 Minn. at 18-19, 149 N.W.2d at 4.  The court stated that a contractor bears no duty to account for the actions of a subcontractor if the general contractor cannot “control or supervise the . . . time, place, and manner of performing the work.”  Id. at 19-20, 149 N.W.2d at 6.  Ultimately, the court concluded that the general contractor did not have the requisite amount of control over its own subcontractor and was therefore not liable to the plaintiff.  Id. at 20, 149 N.W.2d at 7.

            In Sutherland v. Barton, a paper plant contracted with an electric company.  570 N.W.2d 1, 2 (Minn. 1997).  The court characterized the working arrangement as the plant “directed” the electric company to do the work, and the electric company “decided how best to complete the project” even though a number of the plant’s employees helped “in the planning and oversight of the project.”  Id. at 3.  While working on this project, one of the electric company’s electricians was killed.  Id. at 2.

In analyzing the plaintiff’s claim, the supreme court said, “This court has been hesitant to apply either direct or vicarious liability to a company hiring an independent contractor for injuries to that contractor’s employees.  This reluctance to hold a hiring company liable has been our consistent position for over 100 years.”  Id. at 5.  The court quoted comment c of the Restatement (Second) of Torts § 414, “There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way” before a contractor is directly liable and that “[i]t is not enough that the company has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, [or] to make suggestions or recommendations which need not necessarily be followed.”  Id. at 5-6.  Thus, the supreme court concluded that the plant was not liable based on retained control.  Id. at 6.  A number of other cases illustrate this reluctance to find a business liable for injuries to the employees of another contractor.  See e.g., Larsen v. Minneapolis Gas Co., 282 Minn. 135, 143-44, 163 N.W.2d 755, 761 (1968) (stating that the reason for holding the general contractor liable in Thill was that the general contractor could see the subcontractor’s negligence and did not correct it); see also Zimmer v. Carlton County Co-op. Power Ass’n., 483 N.W.2d 511, 514-15 (Minn. App. 1992) (distinguishing Zimmer from Thill because the defendant in Zimmer did not retain control over the job site),  review denied (Minn. June 10, 1992).

Here, respondent-Carlstrom did not owe appellant a duty based on the retained control over the work.  Respondent-Carlstrom and respondent-Security were “cocontractors,” similar to the arrangement in Rausch, because each had a contract with Valley Bank and each was responsible for specific parts of the work, for which they were subject to the bank and only the bank.  276 Minn. at 18-19, 149 N.W.2d at 6.  Respondent-Carlstrom had no authority over appellant, either to order appellant to do any work or to direct appellant how, when, or where to perform his work.  See id. at 19-20, 149 N.W.2d at 6-7 (stating that “cocontractors” are not liable for each other’s work).  Any attempt by appellant to characterize his interaction with Davey as Davey giving appellant instruction is not supported by the record because both appellant and Davey testified that Davey merely told appellant that the safe needed to be moved, not that Davey told appellant that appellant must move the safe.

In any event, whatever communications took place between Davey and appellant are insufficient to impose a duty on respondent-Carlstrom.  In Rausch, the court did not find the communications between the cocontractors to be sufficient to impose liability.  Id. at 16, 149 N.W.2d at 4.  Furthermore, even if the communication was an order to perform work, it was still permissible under Sutherland because appellant was allowed to perform the work however he deemed best without any interference from respondent-Carlstrom.  See 570 N.W.2d at 3 (holding that communications between the building owner and the contractor concerning the project did not impose liability on the building owner).  The fact that appellant was allowed to perform the work in whatever manner he chose meant that respondent-Carlstrom did not have sufficient control over his work to owe appellant a duty.  See id. at 6 (holding that a building owner was not liable where the contractor could perform the work in whatever manner the contractor chose).  Thus, the district court did not err in granting respondent-Carlstrom summary judgment on this issue.

2.  Duty to warn

In the alternative, appellant argues that respondent-Carlstrom owed him a warning because respondent-Carlstrom should have anticipated the harm to him from what appellant concedes was an open and obvious danger.  Contractors usually “are not . . . liable for harm caused by known or obvious dangers unless [the contractor] should anticipate the harm despite its obvious nature.”  Id. at 7.  It is irrelevant whether the injured person is a licensee or an invitee.  Louis v. Louis, 636 N.W.2d 314, 319 (Minn. 2001).  Certain conditions are so obvious that there is no need to warn about them.  Id. at 321-22.  “[T]he operation of the law of gravity is a matter of such common knowledge that all persons of ordinary intelligence and judgment . . . are required to take notice of it” and there is no duty to warn against such an obvious danger.  Rausch, 276 Minn. at 21, 149 N.W.2d at 7. 

Here, respondent-Carlstrom had no duty to warn appellant of the obvious danger that moving a heavy safe posed to him.  Respondent-Security was hired to supply and move the safe; respondent-Carlstrom was not.  Respondent-Carlstrom had no expertise in moving safes and, in fact, does not move safes.  Davey talked to appellant about the safe because it was too dangerous for respondent-Carlstrom to move the safe.  Appellant knew that he had no expertise in moving safes, but respondent-Carlstrom did not know appellant was not qualified to do so and in fact reasonably believed appellant was qualified because appellant had previously moved the safe.  Therefore, appellant had greater knowledge concerning the risk involved than respondent-Carlstrom did, and respondent-Carlstrom thus could not foresee the injury to appellant.   Cf. Conover v. Northern States Power Co.,313 N.W.2d 397, 402 (Minn. 1981) (ruling there was a duty to warn where the property owner has greater knowledge of the risk than the worker); see Donaldson, 539 N.W.2d at 792 (stating that a defendant is typically liable, inter alia, only if the defendant is in a better position to protect the plaintiff than is the plaintiff).

Not only did appellant have superior knowledge of his qualifications but appellant was also required to exercise common sense.  See Snilsberg v. Lake Washington Club, 614 N.W.2d 738, 744 (Minn. App. 2000) (stating that plaintiffs must exercise common sense), review denied (Minn. Oct. 17, 2000).  It is common sense that moving objects over uneven surfaces can cause the objects to become unstable; gravity can then cause the object to tip over.  See Rausch, 276 Minn. at 21, 149 N.W.2d at 7 (stating “that the operation of the law of gravity” is a matter of common sense). 

Appellant was an employee of respondent-Security, and Davey told appellant that the safe needed to be moved.  Appellant had previously moved the safe and chose to do so again, knowing that he was not qualified to do so.  Respondent-Carlstrom had no knowledge of appellant’s duties or skills, and appellant has cited no authority requiring respondent-Carlstrom to inquire into his skills.  Appellant concedes that he knew the floor was uneven, and appellant had first-hand knowledge that the safe was heavy.  Thus, it was appellant’s duty to exercise common sense and not move the safe and not expect respondent-Carlstrom, who had no skill in, or responsibility for, this work, to warn him of the danger posed by a falling safe.  See Donaldson, 539 N.W.2d at 792.  Therefore, we conclude that respondent did not owe appellant a duty to warn him of the danger the safe posed to him.

            Affirmed.