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Brent v. Unicol, Inc. (12/24/98), 969 P 2d 627
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
WILLIAM E. BRENT, )
) Supreme Court No. S-8178
) Superior Court No.
v. ) 2BA-95-08 CI
UNICOL, INC., ) O P I N I O N
Appellee. ) [No. 5059 - December 24, 1998]
Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Barrow,
Ben J. Esch, Judge.
Appearances: Steven L. Hempel, Choate Hempel,
Juneau, for Appellant. Eric P. Gillett, Preg, O'Donnell, Sargeant
& Gillett, PLLC, Seattle, Washington, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Under the majority rule, reflected in Restatement
(Second) of Torts sec. 385 (1965), even after a property owner
accepts a contractor's work, the contractor may be liable to third
parties injured by a dangerous condition the contractor created on
the property. William Brent sued Unicol, Inc., an independent
contractor, after he fell into a hole that Unicol left on the
worksite. The superior court granted summary judgment to Unicol.
We must decide whether Unicol can be held liable even though Brent
was injured after Unicol had left the worksite and the property
owner had accepted Unicol's work. Because we hold that it can, we
reverse Unicol's summary judgment and remand.
II. FACTS AND PROCEEDINGS
ARCO Alaska, Inc. hired Unicol as an independent
contractor to perform excavation and install sheet piling as part
of a bridge construction project on the North Slope. Unicol drove
sheet piling into the ground in squares and then excavated the
interior of the squares in preparation for construction of bridge
supports. The excavation was approximately twenty feet deep.
Although Unicol placed "rig mats"over the excavated squares before
it left the work site, there were gaps along the edges because the
sheet piling walls, which extended above the ground, were "S"
shaped and the mats did not cover the walls completely. After
Unicol completed its work, ARCO inspected Unicol's worksite with a
Unicol employee and accepted Unicol's work. Unicol left the
worksite on March 14, 1994.
H.C. Price, another independent contractor, began
installing pipe in the causeway next to Unicol's work site.
Approximately three weeks later, William Brent, an employee of H.C.
Price, fell into a hole between an excavation wall and a rig mat,
and was injured. The hole was unmarked and was allegedly covered
Brent sued Unicol for "negligence in failing to mark the
holes, cover the holes, or otherwise provide notice and warning of
their existence." Unicol moved for summary judgment, arguing that
it did not owe Brent a duty of care because Unicol was no longer in
possession of the work site when Brent was injured and because ARCO
had accepted Unicol's work. Unicol also argued that the evidence
showed that Unicol had marked the holes or taken other safety
measures before it demobilized and that someone other than Unicol
must have removed the markings. The superior court granted summary
judgment to Unicol because it concluded that Unicol owed Brent no
duty of care. Brent appeals.
A. Standard of Review
"In reviewing a grant of summary judgment, this court
must determine whether any genuine issue of material fact exists
and whether on the established facts the moving party is entitled
to judgment as a matter of law."[Fn. 1] We review de novo an
order granting summary judgment. [Fn. 2]
B. Did Unicol Owe Brent a Duty of Care?
The superior court relied on Brock v. Rogers & Babler,
Inc., 536 P.2d 778 (Alaska 1975), to conclude that Unicol owed no
duty to Brent once it had left the work site because, the Brock
court reasoned, "former possessors of land are not liable for
injuries caused to others while upon the land by any dangerous
condition, natural or artificial, which existed when the possession
of the land was transferred."[Fn. 3] Brent attempts to
distinguish Brock by arguing that the danger in that case was open
and obvious while the danger in this case was latent. Unicol does
not address Brent's argument, but argues that Brock controls
because "a contractor for all intents and purposes is in fact the
possessor of the property."
Brock and the Restatement (Second) of Torts sec. 352
[Fn. 4] on which Brock is based, do not apply here. Unicol was not
the owner or lessee of the work site, and Brent's negligence claim
is not based on Unicol's status as a former possessor of land, but
on its status as the independent contractor which allegedly created
a dangerous condition on the land. It was error to conclude that
Brent's case is instead governed by the Restatement
(Second) of Torts sec. 385 (1965), which discusses when an
contractor can be liable for injuries resulting from dangerous
conditions it creates:
One who on behalf of the possessor of land
erects a structure or creates any other condition thereon is
subject to liability to others upon or outside of the land for
physical harm caused to them by the dangerous character of the
structure or condition after his work has been accepted by the
possessor, under the same rules as those determining the liability
of one who as manufacturer or independent contractor makes a
chattel for the use of others.[ [Fn. 5]]
Section 385 reflects the majority rule that "a contractor is held
to the standard of reasonable care for the protection of third
parties who may foreseeably be endangered by his negligence, even
after acceptance of the work by the contractee."[Fn. 6]
Unicol recognizes in its brief that sec. 385 applies to
case but argues that sec. 385, Comment c supports the conclusion of
no liability. Unicol emphasizes the part of Comment c that states:
a servant or contractor who turns over the
land with knowledge that his work has made it dangerous in a manner
unlikely to be discovered by the possessor is subject to liability
both to the possessor, and to those who come upon the land with the
consent of the possessor or who are likely to be in its vicinity.[
Unicol argues that this statement "dovetails with the reasoning of
this court in Brock holding that a former possessor is not liable
when it is no longer in possession and control." Unicol argues
that it is therefore not liable because "the injury occurred after
Unicol left the site and after Unicol disclosed to ARCO the
conditions and potential hazards at the site."
Although Comment c sets out an exception to sec. 385, it
does not go as far as Unicol contends. Under Comment c, a
contractor who turns the site over to the owner may discharge its
duty to third persons if the condition which harms the third person
is either (1) fully disclosed to the owner, or (2) fully recognized
by the owner even if not disclosed. Comment c refers to sec. 388,
Comment n for the discussion of this exception. Comment n states
In all such cases the question may arise as to
whether the person supplying the chattel is exercising that
reasonable care, which he owes to those who are to use it, by
informing the third person through whom the chattel is supplied of
its actual character.[ [Fn. 8]]
Comment n requires the party creating the danger to act reasonably
in ensuring not only that the property owner is informed but that
other potential victims will be aware of their peril. Unicol has
not discussed, except in the briefest terms, why disclosure of the
condition to ARCO must satisfy sec. 385, and has not discussed sec.
Even assuming that the rule Unicol proposes is correct,
however, Unicol has not established that it fully disclosed to ARCO
the condition -- the gap between the rig mats and the edge -- and
it has not established that ARCO fully recognized the nature of the
hazard Unicol's work potentially posed. Although some evidence
would permit an inference that ARCO was informed of the condition
by a walk-around inspection it allegedly conducted with Unicol, a
contrary inference could be drawn from evidence that the protective
snow berm Unicol claimed it left overlapped the edge and covered
part of the rig mat. If the berm did in fact overlap the edge and
cover part of the mat, it would have obscured the gap from ARCO's
observation, preventing ARCO from recognizing the dangerous
Furthermore, it is not enough that ARCO arguably should
have discovered the allegedly hazardous condition during its walk-
around inspection. Comment c of sec. 385 refers to sec. 396 in
discussing whether the contractor's liability is affected by the
fact that the employer, as the possessor of the land, is under a
duty toward the person injured to discover the defect and make the
condition safe or warn such person of the existence of the danger.
Restatement (Second) of Torts sec. 396 (1965) provides: "A
manufacturer of a chattel is subject to liability . . . although
the dangerous character or condition of the chattel is discoverable
by an inspection which the seller or any other person is under a
duty to the person injured to make." Any duty on ARCO to inspect
the site and detect the condition does not automatically relieve
Unicol of liability.
Under the majority rule expressed in sec. 385, then,
may be liable to Brent. But some jurisdictions have adopted a
minority position. In those jurisdictions, a contractor is immune
from liability under the "completion and acceptance doctrine":
"'[W]here the work of an independent contractor is completed,
turned over to, and accepted by the owner, the contractor is not
liable to third persons for damages or injuries subsequently
suffered by reason of the condition of the work, even though he was
negligent in carrying out the contract.'"[Fn. 9] This
historically was the common law rule, but it has been so riddled
with exceptions that most courts have now adopted the modern rule
reflected in Restatement (Second) of Torts sec. 385 (1965). [Fn.
Courts adopting the modern rule of liability have recognized that
the justifications for the completion and acceptance doctrine were
based on the lack of privity between the contractor and the injured
third party. [Fn. 11] Modern tort law following the watershed case
of MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916), has
eschewed the requirement of privity and has found a duty of
reasonable care whenever the harm was foreseeable. [Fn. 12]
We adopt the majority rule that allows liability for
independent contractors under the terms of sec. 385 of the
(Second) of Torts. We have previously "demonstrated a
dissatisfaction with strict privity limitations in resolving
questions of jobsite liability."[Fn. 13] We have also allowed
liability against chattel manufacturers who are not in strict
privity with those injured by a condition of the chattel. [Fn. 14]
The majority rule allowing liability for contractors is consistent
with Alaska tort law.
Because we adopt the principle set out in sec. 385, we
cannot affirm Unicol's summary judgment on the theory that it owed
no duty to Brent.
C. Did Unicol Establish that There Were No Disputed Material
Facts on the Issue of Negligence?
Unicol argues that we can affirm the summary judgment on
Unicol's alternative theory that it was not negligent because the
"uncontradicted evidence demonstrates that Unicol installed rig
mats, snow berms and reflective markers when it finished its work."
Brent argues that Unicol failed to establish the absence of genuine
issues of material fact about the condition of the site near the
hole when Unicol left the site.
Although the superior court mentioned the lack of
evidence of negligence, it does not appear to have based the
summary judgment on this argument. We consider this issue,
however, because we may uphold a grant of summary judgment on
alternative grounds. [Fn. 15]
Brent correctly observes that negligence issues generally
should be resolved at trial rather than by summary determination.
We noted in Webb v. City of Sitka, 561 P.2d 731, 735 (Alaska 1977),
that the reason for this rule is
[b]ecause of the elusive nature of the concept
of negligence, the determination of the existence of which requires
the forming of a judgment as to the reasonableness of the conduct
of the parties in the light of all the circumstances of the case.
If reasonable minds could draw different inferences and reach
different conclusions from the facts the issue must be reserved for
trial.[ [Fn. 16]]
Both parties agree that the condition of the work site
when Unicol demobilized on March 14, 1994, is the central issue.
Unicol argues that it took safety measures, including the
installation of rig mats, snow berms, and reflective markers. It
supports this assertion with the affidavits of Gary Abbas, the ARCO
employee who inspected the site, and David Thomas, the Unicol
engineering and safety manager who also inspected the site. Unicol
also asserts that Brent has "no evidence that Unicol failed to take
Unicol has referred us to credible evidence that the
safety measures were taken, and Brent has pointed to no evidence
directly establishing the absence of safety measures at the work
site on March 14, 1994. Nonetheless, sufficient evidence exists to
support an inference that Unicol left the worksite in a dangerous
condition. [Fn. 17] A reasonable person could permissibly infer
that Unicol failed to mark the hole as it says it did based on the
following: (1) evidence that the hole was completely hidden on the
day of the accident, only about three weeks after Unicol left; (2)
testimony of the H.C. Price Safety Manager that H.C. Price did no
snow removal around the hole (implying either that Unicol never
built a berm or that a snow berm was not a lasting safety measure);
(3) testimony of the H.C. Price foreman that he did not see any
flagging or markings around the holes before it snowed and before
the accident, but after Unicol demobilized; (4) testimony of a
Unicol employee who asked during demobilization about the holes
left after the rig mat was in place, and was told "not to worry
about it"; (5) inconsistencies in David Thomas's testimony on the
details of the safety measures taken; and (6) the fact that Gary
Abbas's affidavit, submitted after Thomas testified, tracks the
testimony of Thomas and Unicol president John C. Ellsworth, who
also testified that safety measures were taken. Unicol attacks
Brent's evidence, arguing that each piece, in and of itself, does
not raise a genuine issue of material fact. [Fn. 18] But the
evidence as a whole permits reasonable persons to infer that Unicol
failed to take proper measures.
Furthermore, a trier of fact could also conclude that any
safety measures Unicol did take were inadequate even assuming it
constructed a snow berm and put reflective wands on the edges of
the cell. First, there was no evidence permitting, much less
requiring, a conclusion that a snow berm and corner reflectors were
adequate as a barrier or warning, or satisfied industrial safety
standards. Second, assuming that Unicol installed a snow berm and
reflectors, the evidence suggests there were neither berms nor
reflectors in place when Brent fell only about three weeks after
Unicol left the work site. Measures so ephemeral are inferentially
inadequate. A permissible inference that the measures were
inadequate prevents us from concluding that, as a matter of law,
Unicol fully discharged its duty of care.
We cannot affirm on these alternative grounds because
Unicol has not demonstrated the absence of genuine issues of
material fact. [Fn. 19]
We REVERSE the superior court's grant of summary judgment
and REMAND for further proceedings.
Nielson v. Benton, 903 P.2d 1049, 1051-52 (Alaska 1995)
(citing Wright v. State, 824 P.2d 718, 720 (Alaska 1992)).
See id. at 1052 (citing Tongass Sport Fishing Ass'n v. State,
866 P.2d 1314, 1317 (Alaska 1994)).
Brock v. Rogers & Babler, Inc., 536 P.2d 778, 781 (Alaska
Restatement (Second) of Torts sec. 352 (1965), addressing the
liability of the vendor of land, states:
Except as stated in Sec. 353, a vendor of land
is not subject to liability for physical harm
caused to his vendee or others while upon the land after the vendee
has taken possession by any dangerous condition, whether natural or
artificial, which existed at the time that the vendee took
Restatement (Second) of Torts sec. 385 (1965).
Johnson v. Oman Constr. Co., 519 S.W.2d 782, 788 (Tenn. 1975);
see also Minton v. Krish, 642 A.2d 18, 21 (Conn. App. 1994); Kragel
v. Wal-Mart Stores, Inc., 537 N.W.2d 699, 707 (Iowa 1995); Quinn v.
Moore, 292 A.2d 846, 851 (Me. 1972); Council of Co-Owners Atlantis
Condo., Inc. v. Whiting-Turner Contracting Co., 517 A.2d 336, 341-
44 (Md. 1986); McDonough v. Whalen, 313 N.E.2d 435, 439 (Mass.
1974); Kapalczynski v. Globe Constr. Co., 172 N.W.2d 852, 853-56
(Mich. App. 1969).
Restatement (Second) of Torts sec. 385, cmt. c (1965).
Restatement (Second) of Torts sec. 388, cmt. n (1965).
Tennyson v. Plum Creek Timber Co., L.P., 872 P.2d 524, 529
(Wash. App. 1994) (quoting Andrews v. Del Guzzi, 353 P.2d 422, 426
See W. Page Keeton, Prosser and Keeton on the Law of Tortssec.
104A (5th ed. 1984).
See, e.g., Pierce v. ALSC Architects, P.S., 890 P.2d 1254,
1261-62 (Mont. 1995) (discussing the obsolescence of privity
concerns in contractor liability cases).
See Keeton sec. 104A.
Parker Drilling Co. v. O'Neill, 674 P.2d 770, 775 (Alaska
1983) (holding that there is a common law duty to provide a safe
work site running to whoever supplies and controls the work site).
See Clary v. Fifth Ave. Chrysler Ctr., Inc., 454 P.2d 244
(Alaska 1969) (holding that manufacturer can be held strictly
liable in tort for personal injuries attributable to the
manufacturer's defective goods).
See Maddox v. River & Sea Marine, Inc., 925 P.2d 1033, 1039
Webb v. City of Sitka, 561 P.2d 731, 735 (Alaska 1977)
See Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136,
1139-40 (Alaska 1974) (holding that summary judgment is
inappropriate where a jury might fairly infer negligence from the
There was also evidence that the diary Abbas used to document
his work contained no entry concerning the alleged inspection of
the Unicol site. Unicol argues that the diary would be
inadmissable because it has not been authenticated and contains
hearsay. We do not address the admissibility of the diary because
summary judgment would still not be appropriate even if the diary
were not considered.
Unicol also disputes the admissibility and relevance of an
ARCO Safety Handbook. We do not address the admissibility of the
handbook. It is potentially relevant to the applicable standard of
care. The issue of the handbook's admissibility is not dispositive
of this appeal.