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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Martinson v. ARCO (10/8/99) sp-5190

Martinson v. ARCO (10/8/99) sp-5190

     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.


MARTINSON,                    )
                              )    Supreme Court No. S-8304
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3AN-95-10557 CI
ARCO ALASKA, INC., and BP     )
             Appellees.       )    [No. 5190 - October 8, 1999]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.

          Appearances: Richard L. Harren, Law Offices of
Richard L. Harren, P.C., Wasilla, for Appellants.  William A.
Earnhart, Lane Powell Spears Lubersky, Anchorage, for Appellees.  

          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  

          CARPENETI, Justice.

     Larry Martinson appeals the grant of summary judgment in
favor of ARCO Alaska, Inc. (ARCO) and BP Exploration Alaska,
Inc. (BPXA).  We affirm the award of summary judgment to BPXA. 
Because we find that material facts are in genuine dispute with
regard to the claim against ARCO, we reverse the grant of summary
judgment in favor of ARCO and remand the case for further
     Larry Martinson injured his left knee on December 19,
1993 while working on the North Slope.  At the time of his
injury, Martinson was employed as a water truck driver for Peak
Oilfield Services, Inc. (Peak).  Peak was an independent contractor
working for ARCO hauling water at Prudhoe Bay.  BPXA held a state
permit to extract water from Vern Lake and Peak operated pursuant
to that permit. 
     While filling his water truck at the Vern Lake water
extraction site (Vern Lake site), Martinson slipped and fell
on a "combination of water, snow and ice." This icy buildup had
accumulated between the pump house located adjacent to the
Vern Lake site and the ramp on which the water truck drivers backed
down to reach the pump house.  Martinson asserts that the icy
buildup was caused by spillage from other water trucks whose
drivers may have been careless in disconnecting the pump hose from
their trucks. 
     The Vern Lake site was accessed by a pull-off from the
main spine road.  It is undisputed that ARCO maintained the
spine road.  ARCO asserts that it had no responsibility to maintain
the Vern Lake site and that it was exclusively maintained and
controlled by Peak.  Martinson disagrees, arguing that: (1)
ARCO retained control of the Vern Lake site and thus owed a duty to
him based on his status as an employee of an independent
contractor; and (2) ARCO and BPXA owed a duty to him because they
were the possessors of the Vern Lake site.  
     The superior court granted summary judgment in favor of
ARCO and BPXA on both claims brought by Martinson.  The court
relied on the independent contractor doctrine: 
     The Plaintiff was an employee of an
independent contractor.  Under Alaska law the Defendants
cannot be liable for the Plaintiff's injuries unless they had
control over the location where he was injured.  The undisputed
evidence demonstrates that the control of the Vern Lake site rested
solely with Peak. 

     Martinson appeals.

A.   Standard of Review
     This court reviews a grant of summary judgment de novo.
[Fn. 1]  Summary judgment will be affirmed if there are no
genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. [Fn. 2]  An issue of material
fact exists when reasonable jurors could disagree in resolving the
matter. [Fn. 3]  This court will make all reasonable inferences in
favor of the non-moving party. [Fn. 4]
     B.   A Reasonable Juror Could Find that ARCO Retained Control
over the Vern Lake Site.

     "Generally, an employer of an independent contractor owes
no duty to the independent contractor's employees to protect
those employees from the negligence of their own master."[Fn. 5] 
However, we have held that an employer of an independent
contractor has a common-law duty to provide a safe worksite to
independent contractor employees if that employer supplies or
controls the worksite. [Fn. 6]  This duty is commonly referred to
as "retained control." This court expressly adopted the retained
control principle in Moloso v. State. [Fn. 7] 
     In Moloso this court delineated the "bright lines"of
what constitutes retained control.  An employer does not
retain control if the employer only reserves the right to inspect
the work to see that contract specifications are met, while the
independent contractor controls how and when the work is done. [Fn.
8]  However, an employer does retain control if the employer (1)
retains the right to direct the manner of the independent
contractor's performance or (2) assumes affirmative duties
with respect to safety. [Fn. 9]
     Whether an employer of an independent contractor has
retained control and is thus subject to liability is normally
a question of fact to be determined by a jury. [Fn. 10]  In this
case, however, the superior court found that "[t]he undisputed
evidence demonstrates that the control of the Vern Lake site
rested solely with Peak."
     Applying the Moloso guidelines, the superior court held:
"[T]he Defendants could be liable for the Plaintiff's injuries
if they either directed or supervised Peak's extraction of water
from the Vern Lake site, or if they affirmatively assumed duties of
removing snow and ice buildups from the pump houses."
     This framing of the issues is sound.  Moreover, the
superior court correctly found that ARCO did not direct or
supervise Peak's extraction of water from the Vern Lake site.  But
the superior court erred in finding that no genuine issues of
material fact exist as to whether ARCO affirmatively assumed
snow and ice removal duties at the Vern Lake site.
          1.   Martinson presented no material facts which
would allow a reasonable juror to find that ARCO directed or
supervised Peak's water extraction at the Vern Lake site.

     Martinson testified that at the time of his accident he
was employed by Peak, driving a Peak truck, supervised by a
Peak employee, and dispatched by that employee to haul water to
various sites at Prudhoe Bay.  Martinson has not presented any
evidence that ARCO directed or supervised him or that ARCO directed
or supervised Peak's water extraction at the Vern Lake site. 
          2.   There are material facts which would allow a
reasonable juror to find that ARCO affirmatively assumed snow and
ice removal at the Vern Lake site.
     This court has held that two factors are relevant in
determining whether the nature and extent of the retained
control is sufficient to warrant imposition of liability: 
contractual provisions relating to retained control and actual
exercise of control. [Fn. 11]  In the present case, there are
material facts in dispute concerning both.
          a.   Contract provisions
     Throughout each party's pleadings and the superior
court's summary judgment memorandum and order there are
references to various contracts between Peak and ARCO and
modifications to those contracts.  The contracts are complex and
the parties interpret them differently.  For example, ARCO and BPXA
cite section 25 of contract AK91-0473 to support the claim that
ARCO retained no control over the area in question.  That section
     ARCO will provide the following services for
Contractor personnel engaged in performance of Work at North
Slope locations: 
     . . . .
      [Section] v.  Snow and ice removal and other
road maintenance for access roads normally used for ARCO
operations between permanent facilities, Work sites and other
locations utilized in support of Work.  Contractor shall be
responsible for all other required snow and ice removal.
     ARCO and BPXA assert that the Vern Lake site was one of
the areas in which the contractor, Peak, was contractually
responsible for snow and ice removal because it was not an
access road normally used for work.  Yet Ronnie Lee, one of Peak's
supervisors, testified at his deposition with regard to snow
and ice removal at Vern Lake:
     Well, there was never anything in the
contract, it was just a gentlemen's agreement that we [Peak]
would maintain cleaning it up.  And it was just the way we work up
there.  I mean, the companies help one another out to keep the
water holes, because we're [Peak]  not the only ones using that
water hole.  And ARCO will clean it out or Peak will clean it out. 
And mainly they're the main contractors up there any more.
(Emphasis added.)

     This statement, when read with all reasonable inferences
drawn in favor of Martinson (as the court must on a motion for
summary judgment brought by ARCO), lends credence to
Martinson's claim that ARCO retained control of ice and snow
removal at the Vern Lake site. 
          b.   Actual exercise of control
     Martinson has presented evidence that ARCO actually
exercised control over at least a portion of the snow and ice
removal at the Vern Lake site during the winter of 1993-94.
     First, another Peak water truck driver, Albert Jim
McCants, stated in his deposition that he saw snow removal
equipment, scratchers, road graders, snow blowers, and loaders
with "big stickers"on the side that said "ARCO Heavy Equipment"
removing snow and ice from the Vern Lake site.  This equipment
was operated by Peak employees under a different contract than the
one under which Martinson and McCants were employed.  McCants
testified that when snow and ice were built up at the Vern Lake
site, he would call the Peak dispatcher and ask him to call "Heavy
Equipment,"meaning ARCO heavy equipment, to come and clean up
the site, and that the equipment would come.  There is disagreement
over whether Peak dispatchers directly sent Peak employees in
ARCO's vehicles to the site or whether the ARCO dispatcher referred
to as the "106"sent the equipment to the site.  This is a
material fact in dispute.
     Second, Martinson testified that two or three days before
his accident he saw ARCO heavy equipment removing snow from
the Vern Lake site.  It is unclear whether ARCO or Peak directed
that equipment to the Vern Lake site.  This too is a material fact
in dispute.
     Third, Martinson presents ARCO's dispatch records from
1993-94, which show that on seven different occasions ARCO
dispatched snow removal and scratching equipment to the Vern Lake
site.  ARCO contends that this was done at Peak's request and "only
. . . in emergency situations such as during wind storms."
But the dispatch record shows that ARCO sent equipment to Vern Lake
on December 21, 1993 and again on December 24, 1993; in neither
case does it appear that an emergency situation existed.  Both of
these incidents occurred within five days of Martinson's injury on
December 19, 1993.
     In sum, Martinson has presented enough evidence to
withstand summary judgment on his retained control theory of
liability against ARCO.
C.   Martinson Has Waived Appellate Consideration of His Claim
that ARCO and BPXA Owed Him a Duty Because They Were the
Possessors of Vern Lake.
     We will not consider arguments which are inadequately
briefed on appeal.  "[W]here a point is given only a cursory
statement in the argument portion of the brief, the point will
not be considered on appeal."[Fn. 12]  Martinson's discussion of
this point in his brief is cursory at best: He asserts in
conclusory fashion that ARCO and BPXA are the "possessors of Vern
Lake." No further support for that assertion is found in the
brief.  Because Martinson has waived consideration of this point by
failure to brief it adequately, and this is the only basis upon
which Martinson argues that BPXA is liable to him, summary judgment
in BPXA's favor must be affirmed.
     Because there are material facts in dispute concerning
whether ARCO retained control, both contractually and in actual
practice, over snow and ice removal at the Vern Lake site,
ARCO was not entitled to summary judgment.  The grant of summary
judgment to ARCO is REVERSED and the case REMANDED for further
proceedings consistent with this opinion.  Because no fact issues
are in dispute concerning BPXA, the award of summary judgment to
BPXA was proper, and is AFFIRMED.                                 


Footnote 1:

     See Ramsey v. Sand Point, 936 P.2d 126, 129 (Alaska 1997)
(citation omitted).

Footnote 2:

     See id. (citation omitted).

Footnote 3:

     See McGee Steel Co. v. State, 723 P.2d 611, 614 (Alaska

Footnote 4:

     See Ramsey, 936 P.2d at 129 (citation omitted).

Footnote 5:

     Dahle v. Atlantic Richfield Co., 725 P.2d 1069, 1072
(Alaska 1986) (citation omitted).

Footnote 6:

     See Parker Drilling Co. v. O'Neill, 674 P.2d 770, 776
(Alaska 1983).

Footnote 7:

     644 P.2d 205, 210-ll (Alaska 1982).

Footnote 8:

     See id. at 211.

Footnote 9:

     See id.

Footnote 10:

     See id. at 212.

Footnote 11:

     See Dahle, 725 P.2d at 1072 (citation omitted).

Footnote 12:

     Adamson v. University of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991) (citations omitted).