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Tallman v. City of Hurricane6/1/1999
feet and was apparently dug in unstable soil without trench protection. The trench caved in and killed him; therefore, this case implicates clauses (c) and (d) as well. Thus, in this case we may adopt OSHA and UOSHA regulations as evidence of the standard of reasonable care in the industry. Because OSHA standards are so widely known, understood, and followed, they constitute a legitimate source for the standard of reasonable care, and we hereby approve their use as evidence of such.
Violations of legislative or regulatory standards adopted by this court constitute negligence. See Restatement § 288B(1). According to the appellants' affidavits, OSHA required Haukos, as the condition's creator, to make sure safety measures were taken. If the appellants can establish the necessary facts at trial, the jury may find that Haukos owed a duty to Progressive's employees.
III. CONCLUSION
This opinion dispenses with the privity requirement in tort cases involving an independent contractor who creates artificial conditions on land. Because a duty may exist running from the creator of the condition to the employees of the possessor, several questions of material fact remain, precluding judgment as a matter of law. They are as follows: (1) whether Haukos knew that the trench had been cut through unstable rock 7½ feet deep; (2) whether Haukos knew or had reason to know the trench was unsafe as dug and was unlikely to be made reasonably safe before Tallman was to use it; (3) whether Haukos knew the trench would be used so soon after digging that it was unlikely there would be any substantial change in its condition; (4) whether Haukos knew the trench would be dangerous unless carefully made; (5) whether the unshored trench constituted an inherently dangerous condition; and (6) whether Haukos failed to follow the recommended industry standard. We therefore reverse the district court's grant of summary judgment and remand for further proceedings in accordance with this opinion.
Justice Stewart and Judge Jackson concur in Associate Chief Justice Durham's opinion.
Chief Justice Howe concurs in the result.
Having disqualified himself, Justice Russon does not participate herein. Judge Norman Jackson of the Utah Court of Appeals sat.
ZIMMERMAN, Justice, Concurring:
I concur in the majority opinion because it seems compelled by the Restatement provisions relied upon. When viewed in a larger light, however, there is a certain absurdity to today's classic end-run of the workers compensation statute's ban on employees suing employers for injuries on the job . The death of the employee here was apparently caused because his employer, Progressive, did not fulfill its tort obligation to its employee to provide a safe workplace, and Progressive did not fulfill its contractual obligation to Haukos to provide shoring in the trenches that Haukos dug. Yet the defendant sent back for trial on the question of its negligence is Haukos, the party expressly relieved by contract from providing shoring, and the party I assume was induced to bid less for the job because of this contractual provision. After today's decision, one can assume that Haukos and other similarly situated subcontractors will never again be lured into a contract in which the general contractor agrees to see that safety measures are taken. For Haukos, however, that lesson has been learned late.
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