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Smith v. Hales & Warner Construction1/27/2005
work.
CONCLUSION
Plaintiffs argue that this court should reverse the trial court on the basis that CPB and H&W retained control over the framing of the church. However, under the "retained control" doctrine as discussed in Thompson v. Jess, 1999 UT 22, 979 P.2d 322, we conclude that neither Defendant actively participated in the method or operative detail of the injury -causing aspect of Decedent's work. As a result, the general Utah common law rule that shields employers of independent contractors from liability resulting from an act or omission of a contractor or its employee remains undisturbed in this case. Because Plaintiffs have not presented evidence that satisfies the "retained control" exception, the trial court correctly granted Defendants' motions for summary judgment.
Accordingly, we affirm the trial court's order of summary judgment.
Pamela T. Greenwood, Judge
I CONCUR:
Norman H. Jackson, Judge
ORME, Judge (concurring in the result)
I agree the judgment should be affirmed, but I think the question is a closer one as concerns H&W than the main opinion would suggest. (It is not close at all as concerns CPB.) I have two principal areas of disagreement with the majority. First, I disagree with footnote 1. A party who argues on summary judgment that the material facts are not in dispute is not bound to any particular version of the facts. See Wycalis v. Guardian Title, 780 P.2d 821, 825 (Utah Ct. App. 1989), cert. denied, 789 P.2d 33 (Utah 1990). Such a party is really arguing that his view of the facts is undisputed and entitles him to judgment--or at least to the defeat of the other side's motion--but, in the alternative, if his view of the facts is not accepted, then that there are disputes of fact that preclude summary judgment. See id. Plaintiffs may have overstated the matter in arguing in general terms that the facts were not in dispute, but I simply do not see that Plaintiffs ever stipulated, in a binding way, to particular facts.
Second, I do not believe the retained control doctrine is as narrow as the majority believes it to be, although I agree it is not as open-ended as Plaintiffs contend. I see no need to wrestle with the exact scope of the doctrine, however, because in this case the pertinent non-hearsay evidence that was properly before the trial court when it considered the motions for summary judgment, when properly understood in context, is simply insufficient to create a dispute of material, i.e., legally significant, fact.
Gregory K. Orme, Judge
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