Begaye v. Big-D

2008 UT 4
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Marlene Begaye, individually No. 20060572
and on behalf of the heirs of
Michael Begaye,
Plaintiff and Appellant,
v.
Big D Construction Corp. and F I L E D
Does I through V,
Defendants and Appellees. January 25, 2008
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Third District, Salt Lake
The Honorable Robert K. Hilder
No. 040921248
Attorneys: James R. Hasenyager, Peter W. Summerhill, Ogden,
for plaintiff
John R. Lund, Julianne P. Blanch, Salt Lake City,
for Big D
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WILKINS, Associate Chief Justice:
INTRODUCTION
¶1 Marlene Begaye appeals the district court’s grant of
summary judgment in favor of Big D Construction Company (“Big
D”). We conclude that Big D does not fall within the purview of
the retained control doctrine because it did not exercise
sufficient control over the method and manner of the injury-
causing aspect of the work that caused Michael Begaye’s death.
Accordingly, we affirm.
BACKGROUND
¶2 In 2003, Big D was hired as the general contractor on a
large construction project (the “project”) at the University of
Utah. In addition to managing the sequencing and work flow of
the project, Big D also contracted to be responsible for
initiating, maintaining, and supervising all safety precautions

1 Preferred’s subcontract agreement states as follows:
At all times while any of your employees,
agents, or subcontractors are on the Owner’s
premises, you are solely responsible for
providing them with a safe work place of
employment, and you shall inspect all areas
where they may work and shall promptly take
action to correct conditions which are or may
become unsafe.
No. 20060572 2
and programs in connection with the project. Big D subsequently
hired Preferred Steel, Inc. (“Preferred”) as the concrete and
masonry subcontractor. Under the terms of the subcontract
agreement between Big D and Preferred, Preferred was responsible
for its own employees, including providing them with the tools
and equipment necessary for the job. Additionally, the
subcontract agreement required Preferred to provide a safe
workplace for its employees.1
¶3 In early 2004, Kevin Burns, a Big D superintendent,
directed Preferred to begin building the inside face of a rebar
wall known as Wall 39. Typically, the project’s walls were
erected using one of two different methods. One method involved
a process whereby Big D placed a concrete form that provided a
stable platform to which Preferred could tie steel rebar
reinforcements as Wall 39 progressed. A second method involved a
process whereby Preferred tied the steel rebar to an adjacent
wall, which had already been poured and cured. As Preferred
erected Wall 39, it supported it by a third method: using bracing
only, without any concrete forms or wires in place. During the
construction, the bracing broke loose, causing Wall 39 to
collapse. Michael Begaye, a Preferred employee, was thrown to
the ground and killed.
¶4 Following the accident, Marlene Begaye, the deceased’s
wife, filed a wrongful death lawsuit against Big D. Big D moved
for summary judgment on the basis that it did not have control
over the manner and method of the work that caused Michael
Begaye’s death, and, therefore, it could not be liable. Begaye
opposed the motion and filed her own motion for partial summary
judgment on the basis that Big D owed Michael Begaye a duty of
safety as a matter of law. After oral argument, the district
court granted summary judgment in favor of Big D. The district
court reasoned that because Big D had not specifically directed
Preferred as to how to build Wall 39--including whether to use
bracing in lieu of a form--it did not control the method of the
injury-causing activity and was, therefore, not liable under the
retained control doctrine. Begaye now appeals that decision.

2 Begaye also argues that Big D had a contractual duty to
provide a safe work environment and is therefore liable--as a
matter of law--for injuries sustained by a subcontractor.
Although Big D had a general supervisory role over the project,
including a contractual obligation to oversee employee safety,
this simply does not equate to exerting control over the method
and manner of the injury-causing aspect of Preferred’s work. See
Martens v. MCL Constr. Corp., 807 N.E.2d 480, 490 (Ill. App. Ct.
2004) (“We do not . . . equate those [general] safety
responsibilities with control over the means and methods of [the
subcontractor’s] . . . work . . . .” (emphasis added)).
Furthermore, Big D’s contractual agreement is superseded by the
fact that Preferred subsequently contracted to be responsible for
the safety of its own employees. “[E]ven if Defendant did have
responsibility for safety vis-a-vis the owner, that
responsibility was passed on to the various subcontractors [by
contract].” Martinez v. Jacobsen Constr. Co., 2005 UT App 136U
para. 7.
3 No. 20060572
ANALYSIS
¶5 Begaye raises one main issue on appeal. Begaye avers
that the district court erred in granting summary judgment and
concluding that Big D did not exercise sufficient control over
the method and manner of Preferred’s work to have created a
limited duty under the retained control doctrine.2 “Summary
judgment is appropriate only upon a showing ‘that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.’” Waddoups v.
Amalgamated Sugar Co., 2002 UT 69, ¶ 21, 54 P.3d 1054
(quoting Utah R. Civ. P. 56(c)). The question of whether a trial
court properly granted summary judgment is a question of law,
which we review for correctness. See id. Furthermore, when
reviewing a grant of summary judgment, we recite the disputed
facts in a light most favorable to the nonmoving party. See
Quaid v. U.S. Healthcare, Inc., 2007 UT 27, ¶ 8, 158 P.3d 525.
¶6 Begaye contends that Big D is liable under the retained
control doctrine because it controlled the workflow, timing, and
sequencing of the construction of Wall 39. Furthermore, Begaye
argues that because Big D directed Preferred to work on Wall 39
when there were other walls it could have built that did not
require bracing, Big D controlled the method and manner in which
Wall 39 was constructed, bringing it within the exception to the
general rule that primary employers are not liable for injuries
sustained by independent contractors.

No. 20060572 4
¶7 Big D, on the other hand, contends that summary
judgment was properly granted because there was no evidence that
it retained control over the specific method of bracing Wall 39
prior to its collapse. Despite Big D’s control over the
workplace generally, Big D asserts that it is not liable because
it did not instruct Preferred “how to brace, where to tie off the
rebar, whether to anchor the wall with guy wiring, or what
equipment to use as they were putting up the wall.”
Accordingly, Big D insists, the retained control doctrine does
not apply. We agree.
¶8 In the context of tort liability, the general rule is
that “‘the employer of an independent contractor is not liable
for physical harm caused to another by an act or omission of the
contractor or his servants.’” Thompson v. Jess, 1999 UT 22,
¶ 13, 979 P.2d 322 (quoting Restatement (Second) of Torts § 409
(1965)). An exception to this general rule arises, however, when
an employer “participate[s] in or control[s] the manner in which
the contractor’s work is performed,” and therefore “owes [a] duty
of care concerning the safety of the manner or method of
performance implemented.” Id. This exception is known as the
“retained control doctrine” and provides a “narrow theory of
liability applicable in the unique circumstance where an employer
of an independent contractor exercises enough control over the
contracted work to give rise to a limited duty of care.” Id.
¶ 15 (emphasis added).
¶9 Thompson is the controlling case in this appeal. In
that case, we concluded that a premises owner who asked a
contractor to erect a steel pipe was not liable for a worker’s
injuries because the owner had not instructed the contractor as
to the specifics of how to install the pipe. Formally adopting
an “active participation” standard, we held that “a principal
employer is not subject to liability for injuries arising out of
its contractor’s work unless the employer ‘actively participates’
in the performance of the work.” Id. ¶ 18. Applying this
standard, we determined that
a principal employer is subject to liability
for injuries arising out of its independent
contractor’s work if the employer is actively
involved in, or asserts control over, the
manner of performance of the contracted
work. . . . Such an assertion of control
occurs . . . when the principal employer
directs that the contracted work be done by
use of a certain mode or otherwise interferes
with the means and methods by which
the work is to be accomplished.

3 The following deposition testimony was given by Preferred
employee Todd Jex:
Q: [T]his decision . . . to go forward with
[Wall 39] under the circumstances without
forms in place . . . and by using the braces
only, who made that judgment?
. . .
(continued...)
5 No. 20060572
Id. ¶ 19 (emphasis added).
¶10 Furthermore, we noted that the requisite degree of
control over the contractor’s work entails affirmatively
interfering with the subcontractor’s method of performance or
instructing that a less safe method be used. See id. ¶¶ 22, 23
(citing Lewis v. N.J. Riebe Enters., 825 P.2d 5 (Ariz. 1992)).
Simply stated, the general contractor must exercise “such control
over the means utilized that the contractor cannot carry out the
injury-causing aspect of the work in his or her own way.” Id.
¶ 21; see also Dayton v. Free, 148 P. 408, 411 (Utah 1914)
(stating that employers are liable when “the will and discretion
of the contractor as to the time and manner of doing the work or
the means and methods of accomplishing the results [are]
subordinate and subject to that of the [general contractor]”
(emphasis added)).
¶11 We conclude that Big D simply did not exercise
sufficient control over the method and manner of the construction
of Wall 39 to bring it within the purview of the retained control
doctrine. Under Dayton and Thompson, Big D must have
exercised the right to . . . control the
work, not only with respect to the results,
but also with reference to methods of
procedure or means by which the result
was to be accomplished, where the will
and discretion of [Preferred] as to
the . . . methods of accomplishing the
results were subordinate to that of [Big D].
Dayton, 148 P. at 411; see also Thompson, 1999 UT 22, ¶ 18 (“We
believe the [retained control doctrine in Dayton] is correct, and
we formally adopt the same.”). In this case, Big D controlled
the sequencing of the task, as well as the workflow generally,
but it had no discretion or control regarding the specifics of
how Wall 39 was built or which bracing method was to be used.
In fact, Preferred employees testified that they exclusively
controlled the way in which Wall 39 was constructed.3

3(...continued)
A: I would say probably myself and then
talking to everybody.
. . .
Q: Is that a decision that you depended on in
any way for Big D to make for you[?]
A: No. That’s what I decided we would do.
Q: If you had felt that you did not want to
go forward . . . without first having the
forms in place, could you have made that
choice?
. . .
A: Yes.
4 We note that there are serious public policy concerns in
holding a general contractor liable for injuries of a
subcontractor simply because it has a supervisory role and has
closely monitored safety on the job site as a responsible general
contractor should. “Penalizing a general contractor’s efforts to
promote safety and coordinate a general safety program among
various independent contractors at a large jobsite hardly serves
to advance the goal of work site safety.” Martens v. MCL Constr.
Corp., 807 N.E.2d 480, 490 (Ill. App. Ct. 2004).
No. 20060572 6
Accordingly, although Big D had a general supervisory role4 over
when and where Preferred worked, it did not exercise control such
that Preferred could not “carry out the injury-causing aspect of
the work” in its own way, nor was Preferred’s discretion
subordinate to Big D’s. Thompson, 1999 UT 22, ¶ 21.
¶12 Finally, although Big D “ordered” Preferred to build
Wall 39 when it could have sent the employees home for the day or
sent them to work on another wall, such direction is insufficient
to bring it within the scope of the “active participation”
standard articulated by this court. “‘It is not enough that [Big
D] ha[d] merely a general right to order the work stopped or
resumed . . . . Such a general right is usually reserved to
employers, but it does not mean that [Preferred was] controlled
as to [its] methods of work, or as to operative detail.’” Id.
¶ 20 (quoting Restatement (Second) of Torts § 414 cmt. c (1965)
(emphasis in original)).
¶13 Big D did not control the method by which Wall 39 was
braced prior to construction, nor did it affirmatively interfere
with Preferred’s work. Moreover, it did not insist that a
certain method be used to construct Wall 39. As such, Big D does

7 No. 20060572
not fall within the narrow contours of the retained control
doctrine.
CONCLUSION
¶14 We conclude that Big D did not actively participate in
or control the specific method by which Wall 39 was built;
therefore, it is not liable under the retained control doctrine.
Accordingly, we affirm the district court’s grant of summary
judgment in favor of Big D.
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¶15 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.