may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kraus-Anderson Construction Company, et al.,
Filed April 1, 1997
Hennepin County District Court
File No. 9511827
J. Michael Dady, Theodore C. Jennings, J. Michael Dady & Associates, P.A., 4000 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)
Robert J. McGuire, Jo Ann Strauss, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416 (for respondents)
Considered and decided by Kalitowski, Presiding Judge, Toussaint, Judge and Mansur, Judge.
Appellant Kyle Shufelt challenges a decision of the district court granting summary judgment to respondents and denying his motion for partial summary judgment on the issue of negligence per se. We affirm.
Appellant Kyle Shufelt was a Schweiters employee. He began roofing the complex on September 27, 1994. Shufelt and co-worker Jeff Homich were working approximately 37 feet above the ground that day, and although fall protection was available at the site, none was erected. Shufelt and Homich both commented on the wind and decided that they would come down as soon as they finished placing the plywood on the roof. The wind became increasingly strong and Shufelt was knocked from the roof. He sustained serious injuries.
Shufelt commenced an action in July 1995 alleging negligence against both respondents and negligence per se against Kraus-Anderson. Respondents moved for summary judgment on the ground that they owed no duty to Shufelt. Shufelt brought a cross-motion for partial summary judgment on the issue of negligence per se.
In September 1996, the district court granted summary judgment for respondents and denied Shufelt's motion for partial summary judgment. This appeal followed.
(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.
State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). An issue of fact is material if it would affect the outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976). "A reviewing court is not bound by a district court's determination of a purely legal issue." Summit House Co. v. Gershman, 502 N.W.2d 422, 423-24 (Minn. App. 1993).
In a negligence suit, the plaintiff must demonstrate, among other things, the existence of a duty on the part of the defendant. Block v. Target Stores, Inc., 458 N.W.2d 705, 711 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). Whether a legal duty exists is a question of law for the court to determine. Writers, Inc. v. West Bend Mut. Ins. Co., 465 N.W.2d 419, 423 (Minn. App. 1991).
A general contractor generally is not vicariously liable for the negligence of the independent contractor that results in injury to the independent contractor's employee. See Conover v. Northern States Power, 313 N.W.2d 397, 405 (Minn. 1981) (stating that an employer should not be vicariously liable to someone injured while under the direction and control of the party who creates the danger); Zimmer v. Carlton County Co-Op Power Ass'n, 483 N.W.2d 511, 513 (Minn. App. 1992) (stating that vicarious liability does not apply when the injured party is an employee of the independent contractor), review denied (Minn. June 10, 1992). We agree with the district court that respondents cannot be liable under a theory of vicarious liability.
the employer retains control or some measure of control over the project. Even where the employer retains no control, he may still owe a duty of care, as a possessor of land, to persons coming on the premises, including the employees of an independent contractor. Ordinarily this duty would be to inspect and to warn before turning over the jobsite.
Conover, 313 N.W.2d at 401 (citations omitted). Shufelt argues that respondents failed to supervise the site adequately and that they retained control or some measure of control over the Crookston project and thus are personally liable for his injuries.
The record does not support Shufelt's argument that respondents controlled the work site and indicates that H.R.A and Kraus-Anderson were only minimally involved in Schweiters' work. Schweiters' employees testified that they did not look to Kraus-Anderson for guidance regarding the safety measures or other work-related issues at the site.
Neither did respondents breach a duty of care as possessors of land. An employer, as a possessor of land, has a duty to inspect the premises for latent or hidden dangers and to warn persons coming on the land about those dangers. Zimmer, 483 N.W.2d at 514; Conover, 313 N.W.2d at 401. Here, Shufelt was not injured by a latent or hidden danger on the property or by an instrumentality on the land controlled by respondents, but by the wind that caused his fall from the roof. Cf. Thill v. Modern Erecting Co., 272 Minn. 217, 226-27, 136 N.W.2d 677, 684 (1965) (stating that a general contractor who retained control of a worksite could be liable for negligence when a subcontractor's employee was injured by a boom in the control of another subcontractor's employee). We conclude that the district court appropriately granted summary judgment for respondents on the issue of personal liability.
Violation of an OSHA regulation constitutes negligence per se when:
[T]he persons harmed by [the] violation are within the intended protection of the statute and the harm suffered is of the type the legislation was intended to prevent.
Zorgdrager v. State Wide Sales, Inc., 489 N.W.2d 281, 284 (Minn. App. 1992) (quoting Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 558 (Minn. 1977). If negligence per se exists, there is a presumption of negligence unless justification or excuse is established. Id. at 283-84.
Minn Stat. § 182.65 (1996) imposes health and safety regulations on employers and employees. But Shufelt was not an employee of Kraus-Anderson within the meaning of this statute; he was an employee of Schweiters. See Minn. Stat. § 182.651, subds. 7, 9 (1996) (defining employer and employee, respectively). Further, Minn. Stat. § 182.6521 (1996) expressly provides that independent contractors (such as Schweiters) must comply with occupational safety and health standards. It was Schweiters' statutory duty to provide a safe workplace for Shufelt.
Shufelt argues that Kraus-Anderson was responsible for job site safety pursuant to 29 C.F.R. § 1926.16(a), which states that "in no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract." Minnesota adopted 29 C.F.R. § 1926 by reference in its own safety and health standards. Minn. R. 5205.0010, subpt. 6 (1995). However, 29 C.F.R. § 1926.16 is in subpart B of the section, which the Department of Labor expressly declined to adopt as part of OSHA because it is only pertinent to the federal Construction Safety Act. 29 C.F.R. § 1910.12(c). Minnesota also adopted 29 C.F.R. § 1910 by reference in Minn. R. 5205.0010, subpt. 2 (1995), and therefore did not adopt the provision upon which Shufelt relies.
We conclude that the district court properly granted summary judgment to respondents and denied Shufelt's motion for partial summary judgment on the issue of negligence per se.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.