“‘[O]ne who owes, and is personally bound to perform, an absolute and positive duty to the public or an individual cannot escape the responsibility of seeing that duty performed by delegating it to an independent contractor, and will be liable for injuries resulting from the contractor’s negligence in the performance thereof, whether the duty is imposed by law or by contract....”
How later courts described this case
- “‘[O]ne who owes, and is personally bound to perform, an absolute and positive duty to the public or an individual cannot escape the responsibility of seeing that duty performed by delegating it to an independent contractor, and will be liable for injuries resulting from the contractor’s negligence in the performance thereof, whether the duty is imposed by law or by contract....”
- involving damages for wrongful death after a young roofer fell from a roof under construction
- reducing a $75,000 award to a seventeen-year-old boy’s estate to $50,000
- “where a contract imposes a duty ... neglect of that duty is a tort and an action ex delicto will lie”
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Van Fossen v. MidAmerican Energy Co., 2009 Iowa Sup. LEXIS 119 (2009)
147 N.W.2d 824, 828 (Iowa 1967) (emphasis added), abrogated in part on other grounds by, Van Fossen, 777 N.W.2d at 695
The opinion
Stuart, J.
(dissenting) — I am reluctant to call the following comments a dissent from the well written and amply supported majority opinion. I would not be justified in requesting additional time to write a full dissent in view of the lack of support for my position. Since I am unable to agree with the result reached here I feel the reasons for my dissent should be stated briefly.
The majority opinion recognizes the general rule that one who employs an independent contractor is ordinarily not liable for the latter’s torts and then holds the facts here created a jury question as to the applicability of all four exceptions to the general rule urged by plaintiff. In making these comments I *1315 will assume the exceptions are all valid. Even so, I do not believe any of them are applicable to these facts. In my opinion, to so hold, leaves little, if any, room for the application of the general rule to construction accidents.
The opinion says: “Plaintiff contends Erwin either slipped on a bulb-tee or tripped on wire and fell through a form board which was yet unprotected by wire or gypsum. The fall occurred about 15 feet south of the poured slab at approximately the middle of the roof.” It seems to me that any negligence which caused a fall as claimed by plaintiff must necessarily have been connected with the subcontractor’s job on which the deceased was working. The opinion does not refer to evidence tending to show defendant retained any control over the operative detail of subcontractor’s work.
Reliance is placed on Article 12 of the contract between the owner and principal contractor. It is claimed this shows a retention of control over safety matters. The terms are very general and it appears to me that rather than being a retention of control of safety procedures, it is actually a delegation of responsibility from the owner to the contractor. In the contract with the subcontractor, it agreed “to assume toward (the contractor) all the obligations and responsibilities that he * * * assumes toward the owner.”
In my opinion this amounted to a delegation of control of safety procedures connected with the subcontract to the subcontractor. I think this was not only as proper as delegating the responsibility from the owner to the principal contractor but advisable. The responsibility for safety measures in the performance of the job should rest upon those most familiar with the dangers and hazards of the work. The general contractor might not have sufficient knowledge concerning details of the operation to prescribe adequate safety rules. I could see where a much more dangerous situation could develop if a general contractor tried to retain control over the details of a subcontractor’s work.
The claimed assumption of control over safety measures by the general contractor related to safety procedures for the whole job. Hard hats were required. Dangerous situations were called to the subcontractor’s attention. There was no evidence defend *1316 ant ever. exercised control over the method of doing a job or interfered with the subcontractor’s procedures.
As I believe the control of safety precautions connected with the details of performing the work under the subcontract were delegable and had been delegated here, there was no contractual obligation on which to base a third-party beneficiary argument.
The holding that the general contractor is liable here under the éxception to the general rule that the job was such that it was “likely to create a peculiar risk unless special precautions are taken” places the whole construction .industry under a responsibility which would best be placed on those actually employing persons to do the work. Construction work, alone, should not be held to create such a peculiar risk.
Even if an employee of a subcontractor is a business invitee, it should not be a basis for liability here. Plaintiff’s own theory of the accident does not attempt to prove there was an unsafe pla'ee to work except such condition as was created by the very work in which deceased was engaged. There was no claim of any hidden trap or defect. Conditions were changing all the time, partly because of the work performed by deceased. There was no' proof of superior knowledge on the part of defendant or any reasons to believe defendant would be more familiar with these temporary conditions than deceased.
There was a suggestion that all planks on the roof were in úse for other purposes. There was no proof additional planks would have been used for walkways had they been available.
I believe the trial court was right and should be affirmed.