# Gordon v. Matson > Supreme Court of Arkansas · April 1, 1969 · 246 Ark. 533 URL: https://www.frixlaw.com/law-library/cases/9777397 ## Case - **Full name:** Frank Gordon, Et Al v. Russell H. Matson, Jr., Et Al - **Court:** Supreme Court of Arkansas - **Decided:** April 1, 1969 - **Citations:** 246 Ark. 533; 439 S.W.2d 627; 1969 Ark. LEXIS 1276 - **Precedential status:** Published - **Opinion:** Dissent by Fogleman - **Judges:** William S. Arnold - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9777397 ## How later opinions describe it (automated extraction) - stating the general rule that the responsibilities of the contractor to employees of the subcontractor on the job are comparable to the duties of the owner of the premises, including a duty to exercise ordinary care and to warn in the event there are any unusually hazardous co… - recognizing that an employer may be responsible for the negligence of an independent contractor, if the employer has undertaken to perform certain duties or activities and negligently fails to perform them thereafter or perform them in a negligent manner ## Opinion text John A. Fogleman, Justice. I respectfully dissent because I think that the trial court and the majority have misapplied the summary judgment statute. Summary judgments are not the favorites of the courts and in determining whether such a judgment should be granted, all pleadings must be liberally construed in favor of the party against whom the judgment would ho granted. White River Limestone Products Co. v. Missouri-Pacific R. Co., 228 Ark. 697 , 310 S.W. 2d 3 . This extreme remedy should be granted only in the absence of any genuine issue as to any material fact. Wirges v. Hawkins, 238 Ark. 100 , 378 S.W. 2d 646 ; Kealy v. Lumbermen’s Mutual Ins. Co., 239 Ark. 766 , 394 S.W. 2d 629 . The burden of demonstrating nonexistence of a genuine fact issue is upon the moving party. Deltic Farm & Timber Co. v. Manning, 239 Ark. 264 , 389 S.W. 2d 435 . If any vital and material fact issue is presented, a summary judgment should be refused. Douthit v. Arkansas Power & Light Co., 240 Ark. 153 , 398 S.W. 2d 521 . In considering a motion for a summaiy judgment all reasonable inferences must be considered in the light most favorable to the party against whom the judgment would go. Evers v. Guaranty Investment Co., 244 Ark. 925 , 428 S.W. 2d 68 . I submit that there is a genuine issue of fact to be determined in this case. Ln order to illustrate the existence of this issue, attention must be given to a legal basis of liability urged by appellants but ignored by the majority. Appellants’ argument with reference to the application of the safety code is not restricted to their contention that compliance with standards therein set out is a nondelegable duty of the general contractor. I will agree that, generally speaking, the general contractor is not the employer under those statutes, insofar as employees of a subcontractor are concerned. Appellants argue, also, that the general contractor was not at liberty to stand by with knowledge of violation of the safety code by his subcontractor and escape liability merely because the actual work was being done by an independent contractor. I submit that appellants are correct in this contention. Although I am unaware of any Arkansas decision on this point, I am convinced that the better rule is that a general contractor who knows that a subcontractor is doing his work in an unlawful and dangerous manner and fails to lake any steps to remedy the situation is liable for any injury resulting directly to a third person for such unlawful and negligent conduct. See 2 Shearman Bed-field on Negligence 685, § 276; Rosenberg v. Schwartz, 260 N.Y. 162 , 183 N.E. 282 (1932); Delaney v. Philhern Realty Holding Corp., 280 N.Y. 461 , 21 N.E. 2d 507 (1939); Schwartz v. Merola Bros. Constr. Corp., 290 N.Y. 145 , 48 N.E. 2d 299 (1943); Gardner v. Stonestown Corp., 145 Cal. App. 2d 405 , 302 P. 2d 674 (1956); Waterway Terminals Co. v. P. S. Lord Mechanical Con., 242 Ore. 1 , 406 P. 2d 556 (1965); Peairs v. Florida Publishing Co., 132 So. 2d 561 , (Fla. App. 1961). While some of these cases involve an owner rather than a general contractor, the principle of law applied is the same. There is clearly an inference from the record considered by the trial court that the general contractor knew the condition which existed, or was aware that it existed, and took no steps to cause corrections to be made even though the dangerous condition was created by a failure of the subcontractor to comply with the safety code. In order to illustrate that there is a genuine issue on this point, it is necessary to refer to the pretrial orden- which was the basis of the motion on which summary judgment was granted. In setting out the appellants’ claim, the court stated that the appellants contended that the hoist was located at such a distance from the edge of the building that the space had to be spanned in order to permit the wheelbarrows and buggies with material to be moved from the hoist to the building; that the space was spanned witli a plywood board slab which was moved back and forth from time to time; that there were no other safety devices or precautions and specifically no fixed stationary platform at the level where the deceased was working, nor were there any guardrails, scaffoldings, toeboards or anything else surrounding the hoist which would protect a person who might fall when the hoist suddenly descended. It was also stated that appellants contended that the contractor had the authority to shut down the hoist if it did not comply with the safety code. According to this order, appellants also contended that the general contractor was negligent in permitting the subcontractor to span the space between the building and the hoist with a movable plywood board instead of a permanent stationary platform firmly fixed to the building, in permitting the subcontractor to operate the hoist at such a distance away from the building as to require that distance to be spanned and in failing to surround the hoist with scaffolding, guardrails and other safety devices which would protect a workman from falling in case the hoist descended without warning. Certain photographs were made exhibits to the pretrial order. These photographs give various views of the building under construction and the Matson hoist. If the conditions were as appellants contend, an inference might well be drawn that the subcontractor could not have utilized this hoist without the required safety appliances or equipment without the knowledge of the general contractor. In contending that the contractor permitted these deficiencies, the appellants necessarily contend that the contractor had knowledge thereof. One cannot permit something of which he has no knowledge. The Rosenberg case is a leading case on the general contractor’s liability in such circumstances. It is typical and particularly applicable here. In that case, the general contractor was building a church. He sublet the brickwork to brick masons. The brick masons were laying brick at a height of 30 or 35 feet from a scaffold built on the outside of the wall. The scaffold was not guarded in any way. There was no rail or screen as required by the building code of the city of New York. A 12-year-old boy on an adjoining lot was injured by a piece of brick which fell from the place where the subcontractor’s workmen wore breaking brick on the scaffold. The New York Court of Appeals reversed the judgment of the trial court dismissing the complaint against the general contractor and remanded the case for trial. This exception to the rule of nonliability of a general contractor is premised upon the assumption that the contractor knows of the unlawful and dangerous condition and fails to exercise any right of control by which he could have caused changes or corrections to he made. It seems to me that these questions of fact remain to he resolved and that they are an issue in this case. I would reverse the summary judgment and remand the case for further proceedings. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777397. Public record. Not legal advice.