Timothy Lee v. M&H Enterprises, Inc. – 4/21/2015
Arizona Court of Appeals Division One holds that a landowner generally is not liable for the negligent conduct of an independent contractor unless the landowner has been independently negligent.
In January 2009, Timothy Lee suffered serious injuries while performing clean-up duties during the final stages of construction at a Sam’s Club store located on property owned by Wal-Mart. At the time, Lee was employed by Able Body Labor, which supplied workers for the general contractor on the project, M&H Enterprises, Inc.
After successfully pursuing a workers’ compensation claim against Able Body, Lee sued Wal-Mart and M&H, alleging they each acted negligently by failing to maintain a safe place to work. Lee appealed after the superior court entered judgment in favor of both Wal-Mart and M&H.
The Arizona Court of Appeals affirmed. As for Wal-Mart, the Court of Appeals relied on Arizona’s longstanding rule that a landowner is not liable for the negligent conduct of an independent contract unless the landowner has been independently negligent. The Arizona Supreme Court held in Ft. Lowell-NSS Ltd. P’ship v. Kelly, 166 Ariz. 96 (1990), that a possessor of land has a duty to keep the property in a safe condition. Despite that holding, the pre-Fr. Lowell case law remains good law and, absent some exceptions, a landowner is not liable for the injuries of an employee of an independent contractor working on the property. The Court also rejected Lee’s contention that Wal-Mart was directly liable because it allegedly retained some control over his work by requesting that he perform the work that gave rise to his injury. To trigger liability on this basis, a landowner must have retained some measure of control not over the premises of the worksite, but over the actual work performed.
The Court of Appeals also affirmed judgment in favor of M&H. The workers’ compensation system is Lee’s exclusive remedy against his employer; he cannot bring a tort claim unless he expressly opted out of the workers’ compensation system before he was injured. When a labor contractor supplies or lends its employee to another employer, both employers are liable for workers’ compensation and both are immune from tort liability for injuries received by the employee on the job. The Court of Appeals concluded that M&H was Lee’s employer under the lent doctrine employee doctrine, and therefore immune from tort liability because M&H had the right to supervise and control Lee’s work at the Sam’s Club construction site.
Judge Brown authored the opinion; Judges Cattani and Downie concurred.