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Bomar v. Farmers Cooperative Association12/27/1999
of Torts ยง 414 cmt. c (1965); see Downs, 481 N.W.2d at 522, 525 (ruling a contractor's inspection of the work, receipt of reports, suggestions, recommendations, alterations, and ability to start or stop work insufficient evidence of control over a subcontractor); Hernandez, 523 N.W.2d at 303 (ruling a contractor's inspection every three hours, directions to wear hard hats and safety glasses, and ability to stop or resume work insufficient control over a subcontractor).
The type of control envisioned by the retained control doctrine includes instructions as to the performance of specific tasks or the method of operation. See Hernandez, 523 N.W.2d at 303.
Marathon Coop did not exercise the degree of control necessary to invoke the retained control exception. Marathon's control consisted of hiring the individual contractors to perform their assigned tasks, occasional inspection as to the progress of each component of the construction, making one minor alteration as to the location of a doorway, and fielding questions as to how it wanted specific aspects of the conveyor system to operate. Marathon Coop did not dictate day-to-day tasks, did not order when work was to stop or resume, and never gave specific instructions on how a particular task was to be completed. The trial court was correct in its finding the control exercised by Marathon was "not the type of substantial control envisioned by the case law." As a matter of law, the evidence simply does not support the existence of a relationship between Marathon Coop and Bomar that would create a duty. Despite our general reluctance to grant summary judgment on issues other than the determination of a duty owed in an existing relationship, we find this case exceptional. Viewing the facts in a light most favorable to Bomar, a rational trier of fact could not find the existence of a relationship implicating a common law duty. The trial court's grant of summary judgment is affirmed.
B. Duties Imposed on General Contractors.
Bomar also seeks to impose duties of care on Marathon Coop because it allegedly acted as a defacto general contractor and is thus responsible for complying with the various requirements of OSHA.
Despite Bomar's clever attempt to recast the central issue of duty under the rubric of responsibilities imposed by OSHA, Marathon Coop was not a defacto general contractor and therefore had no duty to protect Bomar. Although a violation of OSHA standards may constitute negligence per se, Wiersgalla v. Garrett, 486 N.W.2d 290, 292 (Iowa 1992), they cannot be construed to enlarge or diminish the common law. Lunde, 299 N.W.2d at 478. Thus, a common law relationship must still exist before duties arise. To impose the label "general contractor" on a landowner, the landowner must demonstrate the same degree of control contemplated by the retained control doctrine. Compare Tanksley v. Alabama Gas Corp., 568 So. 2d 731, 736 (Ala. 1990) (ruling a contractor or landowner must control the manner in which the work was done to become a general contractor), Pinson v. Minidoka Highway Dist., 106 P.2d 1020, 1022 (Idaho 1940) (ruling the general rule for determining whether one is a general contractor "is the right to control and direct the activities of the employee, or the power to control the details of the work to be performed and to determine how it shall be done"), Bastian v. Carlton County Highway Dep't, 555 N.W.2d 312, 317 (Minn. Ct. App. 1996) ("Active involvement by an employer in directing other employers' workers at a construction site is essential to the extension of OSHA liability . . . ."), and Rodas v. Weissberg, 690 N.Y.S.2d 116, 117-18 (N.Y. App. Div. 1999) (ruling a landowner must control or direct the
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