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Bomar v. Farmers Cooperative Association12/27/1999
t owes the plaintiff a duty of care is always a legal question for the court." Robinson v. Poured Walls of Iowa, Inc., 553 N.W.2d 873, 875 (Iowa 1996). The trial court relied on this exception in overcoming the general presumption that such action is unwarranted absent exceptional circumstances. See Iowa R. App. P. 14(f)(10). It was error to determine the issue as one only implicating a duty of care. The determination whether an existing relationship gives rise to a duty is purely a question of law, yet the existence of that relationship is a question of fact properly reserved for the jury. See Clyde E. Williams & Assocs., Inc. v. Boatman, 375 N.E.2d 1138, 1140 (Ind. Ct. App. 1978). The determination of whether there was sufficient control to create a duty between a landowner and an independent contractor's employee should normally be reserved for the jury. If the jury finds such a relationship exists, the court shall determine the appropriate duty. The trial court's ruling may stand only if it reached the appropriate conclusion despite its erroneous belief that such a determination was a matter of law.
III. The Merits.
Bomar claims the trial court erred in granting summary judgment on two alternate theories. First Bomar alleges Marathon Coop retained sufficient control over the worksite as to impose a duty under the common law. See Restatement (Second) of Torts § 414 (1965). In the alternative, Bomar claims Marathon Coop acted as a defacto general contractor and therefore had the duty to provide a safe worksite under the various provisions of the Occupational Safety and Health Act (OSHA). See 29 C.F.R. § 1926 (1997). Although Bomar attacks the trial court's ruling on two fronts, the issue underlying both claims centers on the degree of control exercised by Marathon Coop. In response to Bomar's assertions, the trial court found
as a matter of law that the control exercised by Marathon over the worksite was insufficient . . . for Marathon to be considered a "general contractor." Defendant Marathon has produced deposition testimony that establishes the absence of a fact dispute on this issue. Marathon retained no control over the day-to-day workings on the site or over the manner in which the work would be done.
. . . ven considering the amount of control exercised by Dunn and any other agent of Marathon at the site, the court finds it insufficient as a matter of law.
A. The Retained Control Doctrine.
The ecumenical overlay draping this case is a landowner who employs "an independent contractor is not vicariously liable for injuries arising out of the contractor's negligence." Lunde v. Winnebago Indus., Inc., 299 N.W.2d 473, 475 (Iowa 1980). The commonly-accepted reasoning for this rule "is the lack of control by the employer over the details of the contractor's work." Id. The doctrine of retained control, however, operates as an exception to this general premise. Hernandez v. Midwest Gas Co., 523 N.W.2d 300, 303 (Iowa App. 1994). The doctrine of retain control permits an action for negligence if the landowner who entrusted the work to the independent contractor retained control of any part of the work. Downs v. A & H Constr., Ltd, 481 N.W.2d 520, 524-25 (Iowa 1992) (quoting Restatement (Second) of Torts § 414 (1965)). To establish control the landowner
must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations or deviations. Restatement (Second)
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