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KRAGEL v. WAL-MART STORES9/20/1995
In these circumstances, there was sufficient evidence to submit Instruction No. 22.
Laubscher has a fall-back position. He maintains Instruction No. 22 erroneously subjects him to liability even after termination of his work. Our case law holds that the independent contractor remains liable even after the contractor's employer accepts the work. Thompson v. Burke Eng'g Sales Co., 252 Iowa 146, 153-55, 106 N.W.2d 351, 355-57 (1960); see also Restatement (Second) of Torts § 385 (1965); 41 Am.Jur.2d Independent Contractors § 50, at 823-24 (1968).
We conclude there was no error as to Instruction No. 22. [537 NW2d Page 708]
VI. Disposition.
As to the appeal, the district court committed reversible error in refusing to submit the Kragels' requested instruction based upon section 425 of the Restatement (Second) of Torts. The court also erred when it refused to instruct the jury to consider the fault of Laubscher and Lobaugh in the total aggregate of causal fault toward the Kragels. We therefore reverse and remand for new trial.
As to the cross-appeal, the court properly instructed the jury that it could find Laubscher and Lobaugh created an artificial condition, thereby subjecting the two to liability for contribution to Wal-Mart.
REVERSED AND REMANDED FOR NEW TRIAL ON APPEAL; AFFIRMED ON CROSS-APPEAL.
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