Roger Van Fossen, Individually, And As Personal Representative Of The Estate Of Ann Van Fossen, Vs. Midamerican Energy Company And Interstate Power And Light Company ( 2009 )

IN THE SUPREME COURT OF IOWA
No. 06–1691
Filed November 13, 2009
ROGER VAN FOSSEN, Individually,
and as Personal Representative of
the ESTATE OF ANN VAN FOSSEN, Deceased,
Appellant,
vs.
MIDAMERICAN ENERGY COMPANY and
INTERSTATE POWER AND LIGHT COMPANY,
Appellees.
Appeal from the Iowa District Court for Woodbury County, John D.
Ackerman, Judge.
Plaintiff appeals from a summary judgment ruling dismissing his
wrongful death claim. AFFIRMED.
Michael P. Jacobs of Rawlings, Nieland, Probasco, Killinger,
Elwanger, Jacobs, Mohrhauser, Nelson & Early, L.L.P., Sioux City, and
John Herrick and Benjamin D. Cunningham of Motley Rice, Mt. Pleasant,
South Carolina, for appellant.
William R. Hughes, Jr., of Stuart, Tinley, Peters, Thorn, Hughes,
Faust & Madsen, Council Bluffs, and Jason Kennedy and Adam Jagadich
of Segal, McCambridge, Singer & Mahoney, Chicago, Illinois, for appellee
MidAmerican Energy Company.
Leonard T. Strand and Kerry A. Finley of Simmons Perrine PLC,
Cedar Rapids, for appellee Interstate Power and Light Company.
2
HECHT, Justice.
This case presents the question of whether owners of a power plant
have tort liability for the wrongful death of the spouse of an employee of
an independent contractor. In this suit against the plant owners, the
plaintiff claims he was exposed to asbestos dust while performing
construction and maintenance work at the plant over a period of several
years. The plaintiff alleges he routinely encountered the carcinogen at
the plant in the course of his employment and further asserts his late
wife contracted mesothelioma as a consequence of her regular exposure
to asbestos dust while laundering his work clothes. The district court
granted the defendants’ motions for summary judgment, concluding the
owners owed no duty to warn the spouse of an independent contractor of
the health hazards posed by asbestos. On further review of the decision
of the court of appeals affirming summary judgment in favor of the
owners, we conclude the owners of the power plant owed no legal duty to
give such warnings to the spouse of an independent contractor’s
employee.
I. Factual and Procedural Background.
Viewing the summary judgment record in the light most favorable
to the plaintiff, a reasonable person could find the following facts. In
1973, Roger Van Fossen (Van Fossen) began working on a construction
project at the Port Neal power plant near Sioux City, Iowa. At that time,
the plant consisted of two functional power generating units, and
construction of a third unit, owned by the corporate predecessors of
MidAmerican Energy Company (MidAmerican), Iowa Power and Light
(IPL), and one other power company, was underway. 1 A year later,
1IPL had no ownership or operational interest in Units 1 and 2, which were
already operational when Van Fossen began working at the Port Neal facility. As there
3
MidAmerican, IPL, and ten other power companies and municipal
utilities formed an agreement to build a fourth power generating unit
which was not completed until sometime in 1980. 2
MidAmerican, as the agent of the other owners, engaged Ebasco
Services (Ebasco) as the general contractor for the construction of Units
3 and 4. The construction contracts gave Ebasco full control over its
employees and the construction of both units. 3 Van Fossen was
employed by Ebasco as an iron-rigger on the construction projects from
1973 to 1981. When the construction of Units 3 and 4 was completed,
Van Fossen continued working at the Port Neal facility. He was hired by
W.A. Klinger Co. (Klinger), a company that contracted to provide
maintenance services on all four of the Port Neal power units.
During his employment with Ebasco in the construction of Units 3
and 4, and while performing maintenance work on all four of the units as
an employee of Klinger until 1997, Van Fossen and his clothing were
exposed to various asbestos-containing products. He wore his work
clothes to his home where they were regularly laundered by his wife, Ann
Van Fossen (Ann). 4
____________________________
is no dispute in this case that MidAmerican and IPL succeeded to the interests of their
corporate predecessors, we will not identify the predecessors in this opinion.
2MidAmerican and the other owners participated in the construction and
ownership of Unit 3 as “tenants in common.” MidAmerican acted as the agent of its co-
owners, however, with full right to contract for materials and services necessary for the
construction, and with “complete discretion in the construction and operation of such
unit.” MidAmerican was similarly authorized by a written agreement to act as the agent
of its several tenants in common in “supervis[ing] and perform[ing] engineering and
other services in connection with the construction of Unit 4.”
3Van Fossen makes no claim that the owners maintained substantial control
over Units 3 and 4 during the construction phase.
4Ann never visited the Port Neal power plant. MidAmerican and IPL suggest
Ann’s exposure to asbestos dust may have come from sources other than the Port Neal
power plants. In particular, the summary judgment record suggests Van Fossen was
4
After Van Fossen’s retirement in 1997, Ann was diagnosed with
malignant peritoneal mesothelioma, a cancer commonly associated with
exposure to asbestos. After Ann’s death, Van Fossen filed this wrongful
death lawsuit against several defendants, including MidAmerican and
IPL, asserting the defendants negligently failed to warn Ann of the health
risks associated with exposure to asbestos. MidAmerican and IPL filed
motions for summary judgment claiming they have no liability for Ann’s
death because they owed no duty to warn family members of employees
of independent contractors of the risks associated with exposure to
asbestos. After a hearing, the district court granted the motions,
concluding MidAmerican and IPL owed no legal duty to Ann, the spouse
of an independent contractor’s employee, who was exposed to asbestos at
a location remote from the plant premises.
We transferred Van Fossen’s appeal to the court of appeals. The
court of appeals affirmed the district court’s summary judgment ruling,
and we granted Van Fossen’s application for further review.
II. Scope of Review.
We review a trial court’s grant of summary judgment for correction
of errors at law. Faeth v. State Farm Mut. Auto. Ins. Co., 707 N.W.2d 328,
331 (Iowa 2005). On motion for summary judgment, the court must:
(1) view the facts in the light most favorable to the nonmoving party, and
(2) consider on behalf of the nonmoving party every legitimate inference
reasonably deduced from the record. Estate of Harris v. Papa John’s
Pizza, 679 N.W.2d 673, 677 (Iowa 2004). Summary judgment is
appropriate if “there is no genuine issue as to any material fact and . . .
____________________________
also exposed to asbestos at locations away from the workplace while pursuing his
hobby of automobile renovation. However, as we conclude the premises-owners owed
no legal duty to Ann, we do not address this factual issue.
5
the moving party is entitled to judgment as a matter of law.” Iowa R. Civ.
P. 1.981(3). The existence of a legal duty is a question of law for the
court to decide. Estate of Pearson ex rel. Latta v. Interstate Power & Light
Co., 700 N.W.2d 333, 341 (Iowa 2005).
III. Discussion.
A. Duty Theories Asserted by Van Fossen. It must be noted at
the outset that Ann never visited the power plant. Accordingly, Van
Fossen’s claim on appeal that MidAmerican and IPL owed Ann a duty is
not based on the well-established special duty of possessors of real estate
to protect non-trespassers against dangerous conditions on real estate.
See Restatement (Second) of Torts § 343, at 215–16 (1965). Instead, Van
Fossen claims MidAmerican and IPL are liable as the employer of an
independent contractor. Although 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,” id.
§ 409, at 370, Van Fossen contends several exceptions to this rule apply
in this case. Specifically, Van Fossen relies on exceptions found in the
second Restatement sections 413, 416, and 427 for work likely to create
a peculiar unreasonable risk of physical harm unless special precautions
are taken and for work involving a special danger inherent in the work.
In addition, Van Fossen contends MidAmerican and IPL owed Ann a
general common-law duty to warn of the risks associated with exposure
to asbestos.
We will discuss each of Van Fossen’s duty theories in turn.
B. Duty to Provide for Taking Precautions Under Restatement
(Second) Sections 413 and 416. Under sections 413 and 416 of the
Restatement (Second) of Torts, one who employs an independent
contractor may be liable if the work performed by the contractor involves
6
a peculiar unreasonable risk of harm to others. Under section 413, the
employer has a duty to either (1) contractually allocate to the contractor
the burden of taking precautions against a peculiar unreasonable risk of
physical harm to others, or (2) exercise reasonable care to provide in
some manner for such precautions if the employer should recognize that
the work is likely to create such a risk. Restatement (Second) § 413, at
384–85; Kragel v. Wal-Mart Stores, Inc., 537 N.W.2d 699, 703 (Iowa 1995)
(stating section 413 addresses liability of the employer because of the
employer’s actual fault). Under section 416, the employer may be held
vicariously liable for the negligence of the contractor performing the work
even though the employer has contractually or otherwise provided for
precautions against the peculiar risk. Restatement (Second) § 416, at
395; Kragel, 537 N.W.2d at 703 (stating employer’s liability under section
416 is vicarious).
We have previously considered whether work performed by
contractors involved risks so “peculiar” as to justify liability under these
sections of the Restatement (Second). In two early cases, both involving
roofing work, we found the exceptions applied and that a general
contractor owed a duty to an employee of an independent contractor.
Trushcheff v. Abell-Howe Co., 239 N.W.2d 116 (Iowa 1976); Giarratano v.
Weitz Co., 259 Iowa 1292, 147 N.W.2d 824 (1967). In Giarratano,
without discussing why the employee’s work atop the roof eighty feet
above the ground involved a peculiar risk, we summarily concluded
substantial evidence of a peculiar risk appeared in the record supporting
the existence of a duty on the part of the general contractor under
7
sections 413 and 416. 5 Giarratano, 259 Iowa at 1308, 147 N.W.2d at
834. Similarly, in Trushcheff, in summary fashion and without
conducting an analysis of the features of Trushcheff’s roofing work that
created a peculiar risk, we observed “it cannot be plausibly argued [the
general contractor] owed Trushcheff no duty of care at the time of the
accident” under sections 413 and 416. Trushcheff, 239 N.W.2d at 126.
We next addressed the concept of peculiar risk in Porter v. Iowa
Power & Light Co., 217 N.W.2d 221 (Iowa 1974). The City of Altoona
contracted with a paving contractor for the construction of a paving
project. Porter, 217 N.W.2d at 226. Porter, who was employed by the
contractor, was electrocuted when a co-employee operating a crane
brought it in contact with Iowa Power’s electric line. Id. Porter’s
administrator sued the city, the city’s engineer, and the power company
alleging the defendants negligently failed to provide a safe workplace and
to warn of the danger from the electrical line. Id. at 231. Affirming the
district court’s refusal to submit to the jury specifications of negligence
based on sections 413 and 416, we concluded the presence of electric
transmission and distribution lines near streets is a matter of common
knowledge and a hazard that a paving contractor can reasonably be
expected to take precautions against to prevent electrocution of its
employees. Id. at 232–33. Accordingly, we concluded the city owed no
duty to Porter because the risk of physical injury arising from the electric
lines was not a peculiar risk. Id. at 233.
Many types of industrial work involve some significant degree of
risk that is outside the definition of peculiar risk under the Restatement
5In Giarratano we also concluded summarily that the general contractor owed a
duty under section 427. Giarratano, 259 Iowa at 1308, 147 N.W.2d at 834. We discuss
below the applicability of section 427 in this case.
8
(Second) sections 413 and 416. In yet another case arising from an
injury sustained by an employee of a roofing contractor, we expressly
considered “[w]hat types of work by their very nature, involve a peculiar
risk of harm.” Lunde v. Winnebago Indus., Inc., 299 N.W.2d 473, 478
(Iowa 1980). We reasoned a peculiar risk of harm as contemplated in
section 416 inheres in the nature of the work. Id. at 477–78. Ordinary
construction work requires routine precautions “ ‘which any careful
contractor could reasonably [be] expected to take,’ ” and is therefore not
generally considered to involve a peculiar risk. Id. at 478 (quoting Porter,
217 N.W.2d at 232). Hazards introduced by the negligence of the
contractor, rather than by the inherently dangerous nature of the work,
are also not classified as peculiar risks. Id. at 479. Consistent with the
rule stated in Lunde, we subsequently held the use of scaffolding in a
residential construction project did not involve a peculiar risk. Downs v.
A & H Constr., Ltd., 481 N.W.2d 520, 526–27 (Iowa 1992). Our court of
appeals applied the same rule in deciding an employee of an independent
contractor who inhaled gas fumes and sustained a brain injury while
cutting and capping a live gas line in a trench was not injured as a
consequence of a peculiar risk. Hernandez v. Midwest Gas Co., 523
N.W.2d 300, 305 (Iowa Ct. App. 1994).
Applying the principles derived from the foregoing authorities, we
conclude the risk that asbestos fibers would be carried home by
Van Fossen and cause injury to Ann was not a risk that inhered in the
construction and maintenance work performed by Van Fossen as an iron
worker at the Port Neal facility. It was instead a risk that was occasioned
by the failure of Ebasco and Klinger to employ routine precautionary
measures against ordinary and customary dangers that MidAmerican
and IPL could reasonably assume would be undertaken by any careful
9
contractor. These routine measures could have, for example, included
workplace laundering or other safe management of clothing worn by
construction workers exposed to asbestos at the Port Neal plant.
Accordingly, we conclude the district court correctly determined the risk
which led to the injury claimed by the plaintiff was not a peculiar risk
under sections 413 and 416. 6
C. Contractor’s Duty as to Inherently Dangerous Activities.
Van Fossen also contends the district court erred in concluding, as a
matter of law, that MidAmerican and IPL owed no duty under
Restatement (Second) section 427 under the circumstances presented in
this case. Under section 427, one who employs an independent
contractor to do work which the employer knows or has reason to know
involves an “abnormally dangerous activity” owes a nondelegable duty to
those exposed to the hazard. Restatement (Second) § 427, at 418. To be
an inherently dangerous activity, “the danger must inhere ‘in the activity
itself at all times, whether or not carefully performed.’ ” Clausen v. R.W.
Gilbert Constr. Co., 309 N.W.2d 462, 467 (Iowa 1981) (quoting Rodriques
v. Elizabethtown Gas Co., 250 A.2d 408, 413 (N.J. 1969)). Thus a danger
is not inherent in work “unless it attends the normal and usual method
of doing the work.” Claussen, 309 N.W.2d at 466. Stated another way, a
danger for which the employer of an independent contractor remains
liable “must be inherent in the work when properly done.” Id. (emphasis
added).
We conclude the district court correctly determined MidAmerican
and IPL owed no duty under section 427 as a matter of law. Van Fossen
6Because of the conclusory nature of the analysis in Giarratano and Trushcheff,
we do not find them instructive. To the extent our decisions in Giarratano and
Trushcheff suggest a more expansive definition of peculiar risk than has been developed
in Porter, Downs, and Lunde, we disavow them.
10
failed at the summary judgment stage to produce evidence tending to
prove Van Fossen’s exposure to asbestos constituted a special danger
inherent in or normal to his construction and maintenance work had it
been performed with routine safety precautions which any careful
contractor could reasonably have been expected to take. Porter, 217
N.W.2d at 232. To be sure, exposure to asbestos presents a grave health
risk for industrial workers. The mere presence of such a grave risk of
physical injury in the workplace is not, standing alone, sufficient to
render work inherently dangerous under section 427. See Hernandez,
523 N.W.2d at 304–05 (concluding grave risks associated with cutting
and capping live gas line in an excavated trench arose from negligence in
operative details of work and were therefore not inherent in the work).
The grave risk associated with exposure to asbestos in the workplace at
the Port Neal plant was not abnormally dangerous under section 427
because it was not inherent in Van Fossen’s work. The risk arose not
from the nature of the construction and maintenance work, but rather
from the manner in which the work was performed by Ebasco and
Klinger without reasonable safety precautions to manage the ordinary
and customary dangers associated with exposure to asbestos.
Accordingly, we affirm the district court’s determination that
MidAmerican and IPL have no liability under section 427 under the
circumstances presented in the summary judgment record.
D. General Duty to Exercise Reasonable Care. We next
consider Van Fossen’s claim that MidAmerican and IPL owed a general
duty to exercise reasonable care to warn Ann of health hazards
associated with exposure to asbestos. This claim is separate and distinct
from the special duty owed by employers of independent contractors
under section 413 and the vicarious liability of such employers for the
11
negligence of their contractors under sections 416 and 427. 7 The district
court concluded MidAmerican and IPL owed no duty to warn a household
member of a person employed by an independent contractor. The court,
applying the then extant analytical framework for determining whether a
duty is owed, reasoned that an injury to Ann, a person with whom
MidAmerican and IPL had no relationship, was not foreseeable to the
defendants. See J.A.H. ex rel. R.M.H. v. Wadle & Assocs., P.C., 589
N.W.2d 256, 258 (Iowa 1999) (holding courts consider the relationship
between the parties, reasonable foreseeability of harm to the person
injured, and public policy factors in deciding whether a duty is owed).
After the district court filed its summary judgment decision in this
case, we filed our opinion in Thompson v. Kaczinski, 774 N.W.2d 829
(Iowa 2009). In Thompson, we adopted the framework proposed in the
Restatement (Third) of Torts for the determination of the existence of a
general duty to exercise reasonable care. Id. at 834. Under this
framework, the foreseeability of physical injury to a third party is not
considered in determining whether an actor owes a general duty to
exercise reasonable care. Id. at 835; Restatement (Third) of Torts: Liab.
for Physical Harm § 7 cmt. j, at 98 (Proposed Final Draft No. 1, 2005).
Although the district court considered the foreseeability of a risk of
physical injury to Ann in its analysis of the duty issue because it did not
have the benefit of our decision in Thompson, summary judgment was
nonetheless proper under our newly adopted analytical principles.
Under the Restatement (Third) framework adopted in Thompson,
an actor owes a general “duty to exercise reasonable care when the
7It is also distinct from the special duties owed by landowners described in
Restatement (Second) sections 328E through 350, which Van Fossen does not assert in
this appeal.
12
actor’s conduct creates a risk of physical harm.” Restatement (Third)
§ 7(a), at 90. However,
[i]n exceptional cases, when an articulated countervailing
principle or policy warrants denying or limiting liability in a
particular class of cases, a court may decide that the
defendant has no duty or that the ordinary duty of
reasonable care requires modification.
Id. § 7(b), at 90. We conclude this case presents an instance in which
the general duty to exercise reasonable care is appropriately modified.
One who employs an independent contractor owes no general duty
of reasonable care to a member of the household of an employee of the
independent contractor. Instead of the broad general duty of due care
described in Restatement (Third) section 7, employers of independent
contractors owe only the limited duty prescribed in Restatement (Second)
section 413 and may be held vicariously liable for the negligence of their
contractors under circumstances described in sections 416 and 427. 8
8We note section 51 of the tentative draft of the Restatement (Third) of Torts
proposes retention of the rule of limited liability for employers of independent
contractors. The section summarizes the duties owed by possessors of land and
provides:
Whether a land possessor is subject to vicarious liability as the principal
of an independent contractor hired to perform work on the land is
governed by Restatement Third, Agency §§ 7.03–7.08. Nondelegable
duties may be applicable to land possessors, thereby imposing vicarious
liability for the torts of their independent contractors, and are contained
in Restatement Second, Torts §§ 416–429.
Restatement (Third) of Torts: Liab. For Physical and Emotional Harm § 51 cmt. g, at 32
(Tentative Draft No. 6, 2009). We conclude MidAmerican’s duty under the
circumstances presented here was a limited one notwithstanding Van Fossen’s
contention that at least a part of his exposure to air-borne asbestos fibers occurred as
he passed through Units 1 and 2 en route to his work station during the construction of
Unit 3. Van Fossen emphasizes MidAmerican—not Ebasco—was in possession and
control of Units 1 and 2 at all times during the construction of Unit 3, and
MidAmerican is therefore not entitled to the protection of a limited duty under sections
413, 416, and 427 for any exposures experienced by Van Fossen while passing through
Units 1 and 2. The district court concluded Van Fossen failed at the summary
judgment stage to prove he experienced an actual exposure to asbestos while traversing
Units 1 or 2, and Van Fossen does not separately challenge this conclusion on appeal.
Furthermore, Van Fossen’s brief expressly disclaims any argument that MidAmerican
owed Van Fossen or Ann a duty under Restatement (Second) section 343 as a possessor
of the plant.
13
Our determination that MidAmerican and IPL owed only a limited
duty to Van Fossen is also appropriate because the summary judgment
record is devoid of evidence tending to prove MidAmerican and IPL
exercised control over Ebasco or Klinger to such an extent as would
support a broader duty. Under the retained control standard, one who
employs an independent contractor is not liable unless he retains control
of the contractor’s day-to-day operations. Hoffnagle v. McDonald’s Corp.,
522 N.W.2d 808, 813 (Iowa 1994); see also Porter, 217 N.W.2d at 229–
30; Restatement (Second) of Torts § 414 cmt. c, at 388. “[T]he issue of
retained control is inescapably part of the duty issue, which is
necessarily and properly determined as a matter of law by the court.”
Hoffnagle, 522 N.W.2d at 814.
Our conclusion that no general duty of reasonable care is owed by
employers of contractors under the circumstances of this case is
consistent with the prevailing view in other jurisdictions. Most of the
courts which have been asked to recognize a duty to warn household
members of employees of the risks associated with exposure to asbestos
conclude that no such duty exists. See, e.g., Martin v. Cincinnati Gas &
Elec. Co., 561 F.3d 439, 446 (6th Cir. 2009); Riedel v. ICI Americas Inc.,
968 A.2d 17, 27 (Del. 2009); CSX Transp., Inc. v. Williams, 608 S.E.2d
208, 210 (Ga. 2005); Nelson v. Aurora Equip. Co., 909 N.E.2d 931, 939
(Ill. App. Ct. 2009); In re Certified Question, 740 N.W.2d 206, 209 (Mich.
2007); Adams v. Goodyear Tire & Rubber Co., No. 91404, 2009 WL
280398, *4 (Ohio Ct. App. Feb. 5, 2009).
We have identified only four courts that have acknowledged the
existence of a duty to warn employees’ household members of the risks
associated with exposure to asbestos. See Zimko v. Am. Cyanamid, 905
So. 2d 465, 484 (La. Ct. App. 2005); Olivo v. Owens-Ill., Inc., 895 A.2d
14
1143, 1149 (N.J. 2006); Satterfield v. Breeding Insulation Co., 266 S.W.3d
347, 354 (Tenn. 2008); Rochon v. Saberhagan Holdings, Inc., No. 58579-
7-I, 2007 WL 2325214, *2-3 (Wash. Ct. App. Aug. 13, 2007). 9 However,
three of these four cases recognizing a duty to warn are distinguishable
because they did not involve independent contractors. Rather,
Satterfield, Rochon, and Zimko concluded an employer owed a duty to the
household member of its own employee. Satterfield, 266 S.W.3d at 351;
Rochon, 2007 WL 2325214 at *1; Zimko, 905 So. 2d at 470. Accordingly,
we do not find these decisions persuasive in this case because Van
Fossen was not an employee of MidAmerican or IPL. Olivo, however, did
involve the wife of an employee of an independent contractor hired by
Exxon Mobil, the premises-owner, a factual scenario similar to the case
at hand. Olivo, 895 A.2d at 1146. However, other key facts are
significantly different. The New Jersey Supreme Court remanded the
case for further proceedings because a factual issue existed as to the
amount of control Exxon Mobil exercised over the work being done by the
subcontractor’s employee. Id. at 1151. Specifically, there was evidence
tending to prove Exxon Mobil knew of the risks of asbestos exposure and
had failed to provide precautions to employees despite giving safety
instructions and respiratory protection to employees of independent
contractors. Id. Because of the significant factual differences between
Olivo and this case and also because of the public policy considerations
discussed below, we are not persuaded by the decision in Olivo.
The limited nature of the duty owed by employers of independent
contractors takes into account the realities of the relationship between
9Although a fifth court concluded in In re New York City Asbestos Litigation, 786
N.Y.S.2d 26, 28 (App. Div. 2004), that a duty was owed to warn household members
against exposure to asbestos, that decision was subsequently reversed. See In re New
York City Asbestos Litig., 840 N.E.2d 115, 123 (N.Y. 2005).
15
employers and their contractors. One of these realities is that employers
often have limited, if any, control over the work performed by their
contractors. Employers typically hire contractors to perform services
beyond the employers’ knowledge, expertise, and ability. The
contractors’ knowledge and expertise places them in the best position to
understand the nature of the work, the risks to which workers will be
exposed in the course of performing the work, and the precautions best
calculated to manage those risks. These realities dictate that the
persons in the best position to take precautions to manage the risks are
the contractors. The policy of the law therefore justifies the rule placing
the primary responsibility on the contractor for assuring proper
precautions will be taken to manage risks arising in the course of the
performance of the work. The same realities justify the well-established
rules limiting the liability of employers of independent contractors to the
circumstances specified in Restatement (Second) sections 413, 416, and
427. If liability were not limited in this fashion, inefficiencies would
result as employers would be required to develop the knowledge and
expertise in their contractors’ fields so as to be prepared to understand
even the ordinary risks involved in the work and assure that the
precautions necessary to manage those risks are taken. As one court
has noted, “if the law imposed on the principal liability for failure to
supervise or monitor the contractor’s activities, the result is added cost
for minimal benefit.” PSI Energy, Inc. v. Roberts, 829 N.E.2d 943, 953
(Ind. 2005).
Additional policy reasons support the imposition of only a limited
duty on employers of independent contractors. If employers of
independent contractors were to bear an unlimited general duty to
exercise reasonable care, as Van Fossen urges, when their contractors’
16
work involves asbestos, the universe of potential persons to whom the
duty might be owed is unlimited. The general duty of reasonable care
urged by Van Fossen would extend even to persons like Ann who never
visited the property owned by MidAmerican and IPL. Such an expansion
of the duty of employers of independent contractors to exercise
reasonable care would arguably also justify a rule extending the duty to a
large universe of other potential plaintiffs who never visited the
employers’ premises but came into contact with a contractor’s employee’s
asbestos-tainted clothing in a taxicab, a grocery store, a dry-cleaning
establishment, a convenience store, or a laundromat. We conclude such
a dramatic expansion of liability would be incompatible with public
policy, and therefore reject it.
IV. Conclusion.
The work performed by Van Fossen for MidAmerican and IPL did
not involve a peculiar risk or abnormally dangerous activity.
Accordingly, the district court correctly concluded MidAmerican and IPL
owed no duty to Ann, a household member of an independent
contractor’s employee. Policy reasons lead us to reject Van Fossen’s
invitation to impose a general duty requiring MidAmerican and IPL to
warn Ann of the hazards associated with exposures to asbestos. We
affirm the judgment of the district court.
AFFIRMED.
All justices concur except Baker, J., who takes no part.