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Hittel v. Wotco2/16/2000
TC's roof, and we decided, between ourselves, that we would warn our Steel Structure' employees not to ever step onto any of these skylights.
6. Thereafter, I personally took plaintiff Gary Hittel up on these roofs and showed him these skylights. I specifically warned Gary Hittel to never step on these skylights.
7. I remember the pre-construction meeting I attended with WOTC's representatives, Jamie Gibson and Kurt Vircks. The WOTCO people warned me to be careful of those skylights, and not to step on them. I told WOTCO that Awe@ (Steel Structures) would take care of it. As far as the outside slopes were concerned, I remember telling someone from WOTCO that we (Steel Structures) planned to use fall protection [for some areas], but we would not use any fall protection [for other areas.]. The WOTCO representative did not voice any objection, or concern, with my stated plan about fall protection. In fact, there was no any further discussion about fall protection. All of the discussion about tie-off, and fall protection, started and ended with me. WOTCO was not involved in Steel Structure' decision to not use safety harnesses and/or tie-offs on the interior slopes. And WOTCO was not involved in Steel Structure' decision to use safety harnesses, or tie-offs, on the exterior slopes. WOTCO was informed, by me, of Steel Structure' intent and plan, but WOTCO did not modify, affirm, provide input, reject or retain any control over Steel Structure' safety plan for these roofs.
As the movant for summary judgment, WOTCO was required to put forth evidence that WOTCO did not retain the right to direct SS 's construction on the roof and show that it did not assume affirmative duties for safety. Hill, 765 P.2d at 1350; Jones, 718 P.2d at 896.
Deposition testimony, affidavit testimony, and the contract between WOTCO and SSI factually established that assertion.
The burden then shifted to Hittel to present the district court with facts refuting WOTC's initial and reply summary judgment showing. Hill, 765 P.2d at 1350. Hittel highlighted Anderso's deposition testimony of the discussion that took place during a pre- construction meeting; however, the same witness that he relies upon has provided clarification testimony that eliminated any factual issue as to whether WOTCO assumed affirmative safety duties for that work. Hittel failed to refute WOTC's summary judgment showing, and no genuine issue of material fact existed. We affirm the district court decision that, as a matter of law, WOTCO did not owe a legal duty to Hittel.
Temporary Employee Status
In his second issue, Hittel contends that WOTCO owes a legal duty to him because SSI did not pay worke 's compensation coverage premiums for him. He claims that his status as a temporary employee for whom an independent contractor has not paid worke 's compensation coverage is comparable to that of an innocent bystander and he is entitled to the same protections of an innocent bystander.
The differences between the protections afforded to an innocent bystander and the employee of an independent contractor were discussed in Jones v. Chevron, where we observed:
The employee, on the other hand, is covered by worke 's compensation even if the contractor is insolvent. The owner should not have to pay for injuries caused by the contractor when the worke 's compensation system already covers those injuries The owner Ahas in a sense already assumed financial responsibility for the injuries@ because the independent contractor passes along his worke's compensation costs to the owner. Jones, 718 P.2d at 899 (citation omitted).
In this case, Trademark paid worke's compensa
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