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Tallman v. City of Hurricane6/1/1999
This opinion is subject to revision before final publication in the Pacific Reporter.
Fifth District, Washington County The Honorable James L. Shumate
This is a wrongful death case arising from the death of Timothy Tallman in a construction accident. Tallman's heirs appeal the district court's order of summary judgment entered against them. When reviewing summary judgment determinations, we review for correction of error, considering the facts and inferences in the light most favorable to the non-moving party. See Nelson v. Salt Lake City, 919 P.2d 568, 571 (Utah 1996); Stevensen v. Goodson, 924 P.2d 339, 342 (Utah 1996). With that standard in mind, we review the facts of record.
The City of Hurricane employed Progressive Construction Company (Progressive), a general contractor, to install water lines. Progressive then subcontracted with appellee Haukos Construction Company (Haukos) to dig the trenches in which Progressive would lay the pipe. Progressive contractually agreed to provide "all trench protection and shoring." Tallman, a Progressive employee, died when a rock from an unshored trench--dug by Haukos--fell on his head while he lubricated pipe joints. Haukos knew Progressive's workers would be in the trench and was also aware that Progressive had not provided trench protection. Haukos's policy was to not provide warning to general contractors of the need for trench protection unless their own employees were working in the trenches.
The trench was 7½ feet deep at the point where the falling rock killed Tallman. The construction contract required Haukos to dig the trench between 5½ and 6 feet deep. The Occupational Safety and Health Act (OSHA) requires shoring for trenches 5 feet or deeper that are not entirely in stable rock. See 29 C.F.R. § 1926.652(a) (1997). While Progressive believed that the digging occurred in solid rock, no engineer examined the trench for Progressive.
The appellants, Tallman's heirs sued Haukos for common law negligence. The trial court granted Haukos's request for summary judgment, stating:
" s a matter of law, the subcontract between Haukos and Progressive imposed no duty upon Haukos to make the subject workplace safe; Haukos was not in control of the deceased employee or his actions, and Haukos was not in control of the workplace when and where the accident occurred; UOSHA regulations did not create a duty owed by Haukos to any employee of Progressive."
As noted earlier, we review summary judgment decisions for correction of error. "Furthermore, because negligence cases often require the drawing of inferences from the facts, which is properly done by juries rather than Judges, `summary judgment is appropriate in negligence cases only in the clearest instances.'" Nelson, 919 P.2d at 571 (quoting Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991)). However, "without a duty, there can be no negligence as a matter of law, and summary judgment is appropriate." Rocky Mountain Thrift Stores Inc. v. Salt Lake City Corp., 887 P.2d 848, 852 (Utah 1994). If Haukos owed Tallman a duty under any legal theory, and there are disputed facts as to whether that duty was breached, then this court must reverse the summary judgment.
As the district court correctly held, neither the contract nor OSHA standards, by themselves, created a duty which ran from Haukos to Tallman. We conclude, however, that a common law duty may have existed, depending on factual issues still in dispute. Haukos has urged us to hold that the contract language requiring Progressive to provide "all trench protection and shoring" precludes any common law duty on its part to ensure that the trenches were
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