2013 UT App 240

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

M ICHAEL C ROMWELL

, Plaintiff and Appellant,

v.

A & S C ONSTRUCTION

, I NC

. AND G UNS AND H OSES

, I NC

. , Defendants and Appellee

.

Opinion

No. 20110385

‐ CA

Filed October 10, 2013

Fifth District, St. George Department

The Honorable G. Rand Beacham

No. 080501893

Elizabeth B. Grimshaw and Aaron J. Prisbrey,

Attorneys for Appellant

John H. Romney, Attorney for Appellee

J UDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in

which J UDGE W ILLIAM A. T HORNE J R

. concurred. 1 J UDGE C AROLYN

B. M C H UGH concurred in the result.

CHRISTIANSEN, Judge:

¶1 Plaintiff Michael Cromwell challenges the district court’s

grant of summary judgment to defendant Guns and Hoses, Inc.

(Guns & Hoses) on Cromwell’s negligence claim. We affirm.

1. Judge William A. Thorne Jr. participated in and voted on this

case as a regular member of the Utah Court of Appeals. He retired

from the court before this decision issued.Cromwell v. A & S Construction, Inc.

BACKGROUND

¶2 In 2006, property owners in Cedar City contracted with

A & S Construction, Inc. (A&S) to build a new residence. 2 A&S

served as the general contractor on the project and supervised all

aspects of construction, including the construction of an elevator

shaft inside the residence between the basement and the top floor

of the home. Before the elevator was installed, A&S subcontracted

with Guns & Hoses to perform finish carpentry work on the home,

including installation of doors at the access to the empty elevator

shaft on the upper levels of the residence. Miguel Ramirez, the

owner of Guns & Hoses, installed these doors. Three weeks after

Ramirez installed the doors, Cromwell, an employee of Reber

Painting, was applying putty to the trim of the doors on the second

floor of the residence. When he opened the door at the elevator

shaft to apply putty to the inside, he fell approximately thirty

‐ six

feet down the empty elevator shaft and was seriously injured.

¶3 Cromwell filed a negligence action against A&S. A&S filed

a Notice of Allocation of Fault to Guns & Hoses, and the parties

stipulated to Cromwell amending his complaint to add Guns &

Hoses as a defendant. 3 Cromwell added a cause of action for

negligence against Guns & Hoses, alleging that

Guns & Hoses owed a duty of care to install doors,

secure them and warn of known dangers, such as the

open elevator shaft, in a reasonable fashion and in

accordance with existing safety standards as it relates

2. “[W]hen reviewing a grant of summary judgment, we recite the

disputed facts in a light most favorable to the nonmoving party,”

in this case, Cromwell. See Begaye v. Big D Constr. Corp.

, 2008 UT 4,

¶ 5, 178 P.3d 343.

3. This appeal is interlocutory because it relates only to Cromwell’s

claims against Guns & Hoses.

20110385

‐ CA 2013 UT App 240 2Cromwell v. A & S Construction, Inc.

to the 2[nd] floor hinged door which opened onto the

empty elevator shaft.

. . . .

. . . Guns & Hoses breached its duty to Mr. Cromwell

by failing to comply with OSHA standards and

otherwise take reasonable precautions to warn and

protect others on the premises of the danger posed

by the hinged door to an open elevator shaft.

¶4 Guns & Hoses moved for summary judgment, arguing that

it owed no legal duty to Cromwell because its duty was limited to

installing doors leading to the empty elevator shaft and “did not

extend to supervision or safety issues.” Guns & Hoses alternatively

argued that even if it had a duty to protect others from the risk

presented by the covered elevator shaft, it did not breach that duty

because it adequately secured the doors and warned of the danger

of the empty elevator shaft.

¶5 In opposition to Guns & Hoses’ motion for summary

judgment, Cromwell argued that subcontractors “owe a duty of

care for the work they do on a construction project.” Cromwell also

argued that disputed material facts existed regarding the timing

and manner in which the doors were secured and whether they

were secured at all.

¶6 The district court granted Guns & Hoses’ motion for

summary judgment, relying on the following facts that it viewed

as undisputed: (1) “[Cromwell] alleges that Guns & Hoses owed a

duty to secure the elevator shaft doors and warn of the danger of

the elevator shaft,” (2) “Guns & Hoses secured the elevator shaft

doors after installing them,” (3) “A&S confirmed that the elevator

shaft doors were secured by Guns & Hoses after they were

installed and before [Cromwell’s] fall,” (4) “[the homeowners] also

confirmed that the elevator shaft doors were secured by Guns &

Hoses after they were installed and before [Cromwell’s] fall.”

¶7 Based on these undisputed facts, the district court granted

summary judgment to Guns & Hoses. The district court’s summary

judgment ruling was based on its determination that Guns & Hoses

20110385

‐ CA 2013 UT App 240 3Cromwell v. A & S Construction, Inc.

owed no duty to Cromwell to secure the doors, but also on its

determination that, even if Guns & Hoses owed Cromwell such a

duty, the undisputed facts demonstrated that Guns & Hoses did

not breach that duty because it secured the doors and posted

warnings. The district court certified the order as a final judgment

at the request of the parties, and Cromwell appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Cromwell argues that summary judgment was

inappropriate because disputed issues of material fact existed

concerning the reasonableness of Guns & Hoses’ installation of the

doors. Cromwell also argues that the district court failed to view

the facts and reasonable inferences in the light most favorable to

him as the nonmoving party. Finally, he argues that the district

court erred in determining that Guns & Hoses owed him no duty.

¶9 “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.” Begaye v.

Big D Constr. Corp.

, 2008 UT 4, ¶ 5, 178 P.3d 343 (citation and

internal quotation marks omitted). “The question of whether a trial

court properly granted summary judgment is a question of law,

which we review for correctness.” Id. Similarly, whether a duty

exists is a question of law, and we review the district court’s

determination on that point for correctness. Ottens v. McNeil

, 2010

UT App 237, ¶ 23, 239 P.3d 308.

ANALYSIS

I. Guns & Hoses Had No Duty to Protect Cromwell from the

Risk of Falling into the Elevator Shaft at the Time of the Injury.

¶10 Cromwell challenges the district court’s conclusion that

Guns & Hoses owed no duty to Cromwell at the time he arrived on

20110385

‐ CA 2013 UT App 240 4Cromwell v. A & S Construction, Inc.

the job site. 4 Cromwell argues that “Guns & Hoses owed a duty of

care to perform the work it was hired to do in a reasonable

manner.” While Cromwell appears to view the question of duty as

a side issue to be “revisit[ed]” if the district court’s grant of

summary judgment were reversed, “without a duty, there can be

no negligence as a matter of law, and summary judgment is

appropriate,” see Tallman v. City of Hurricane

, 1999 UT 55, ¶ 5, 985

P.2d 892 (citation and internal quotation marks omitted). Thus, our

first inquiry is whether Guns & Hoses owed a duty to Cromwell at

the time of his injury.

A. Guns & Hoses’ Duty as a Subcontractor

¶11 “The creator of an artificial condition on land may be liable

to others

. . . for physical harm caused by its dangerous nature.” Id.

¶¶ 8–9 (adopting Restatement (Second) of Torts § 385 (1965)).

Where a contractor is engaged to perform work without direct

supervision and control by the owner, the contractor is responsible

for preventing the risk arising out of the work, and administering

and distributing it. See Thompson v. Jess

, 1999 UT 22, ¶ 13, 979 P.2d

322. Thus, so long as the work remains in his control, a contractor

“is subject to liability ‘as though he were the possessor of the

land.’” See Gonzalez v. Russell Sorensen Constr.

, 2012 UT App 154,

¶ 23, 279 P.3d 422 (quoting Restatement (Second) of Torts § 384

(1965)); see also id. ¶ 30 (concluding that section 384 of the

Restatement is an accurate statement of Utah law “governing the

liability of general contractors for harm caused to others by

conditions at a job site”). Where a general contractor hires a

subcontractor to perform a part of the work, the subcontractor is

4. The district court wrote at some length on whether Guns &

Hoses owed a “continuing duty to guard, monitor, maintain and

secure the elevator door” after completion of its work. While this

analysis by the district court may have, to some extent,

misapprehended Cromwell’s argument below, the district court

ultimately concluded that Guns & Hoses owed no duty to

Cromwell at the time of the injury. It is this conclusion that we

review.

20110385

‐ CA 2013 UT App 240 5Cromwell v. A & S Construction, Inc.

liable in the same manner but “for only such harm as is done by the

particular work entrusted to him.” See Restatement (Second) of

Torts § 384 cmt. d (1965).

¶12 Thus, a general contractor bears the risk of harm caused to

others, including employees of a subcontractor, by the dangerous

character of the structure being built while the work remains in the

general contractor’s charge. See Gonzalez

, 2012 UT App 154, ¶¶ 21,

30 (concluding that a subcontractor’s employee had pleaded

sufficient facts supporting a direct negligence claim against the

general contractor under section 384 of the Restatement to preclude

summary judgment). While no Utah case specifically addresses a

subcontractor’s duties to the employees of another subcontractor,

we conclude that under Thompson v. Jess and section 384 of the

Restatement, a subcontractor owes the same duty to employees of

another subcontractor as it owes to any other person. See Thompson

, 1999 UT 22, ¶ 13; Restatement (Second) of Torts § 384 & cmt. d; cf.

Tallman

, 1999 UT 55, ¶ 30 (holding that a subcontractor may have

a duty under section 385 of the Restatement to employees of a

general contractor). This conclusion is consistent with how other

jurisdictions have addressed claims of negligence between

subcontractors. See, e.g.

, Sarmiento v. Stubblefield ʹ s Custom Concrete,

Inc.

, 874 P.2d 997, 999 (Ariz. Ct. App. 1994) (holding that a

subcontractor owed a duty to perform its work without creating an

unreasonable risk to another subcontractor); Johnson v. A & M

Custom Built Homes of West Bloomfield, LPC

, 683 N.W.2d 229, 232

(Mich. Ct. App. 2004) (“[A]s between two independent contractors

who work on the same premises, either at the same time or one

following the other, each owes to the employees of the other the

same duty of exercising ordinary care as they owe to the public

generally.” (citation and internal quotation marks omitted)); Tapia

v. Panhandle Steel Erectors Co.

, 428 P.2d 625, 629 (N.M. 1967)

(“‘Where two or more independent contractors, or a general

contractor and one or more subcontractors, are engaged in work on

the same premises, it is the duty of each contractor, in prosecuting

his work, to use ordinary and reasonable care not to cause injuries

to the servants of another contractor

. . . .’” (quoting 57 C.J.S. Master

& Servant § 610)).

20110385

‐ CA 2013 UT App 240 6Cromwell v. A & S Construction, Inc.

¶13 However, a subcontractor’s liability to employees of another

subcontractor is limited to “only such harm as is done by the

particular work entrusted to him.” See Restatement (Second) of

Torts § 384 cmt. d; accord Gonzales

, 2012 UT App 154, ¶ 26

(“[S]ection 384 of the Restatement (Second) of Torts correctly states

Utah law.”). The scope of a subcontractor’s duty to employees of

other contractors is exemplified by Weiser v. Bethlehem Steel Corp.

, 508 A.2d 1241 (Pa. Super. Ct. 1986), wherein an employee of one

subcontractor on a construction site alleged that he was injured by

the negligence of another subcontractor. Id. at 1243–44. The general

contractor had contracted with Bethlehem Steel to erect the

structural steel frame of the building. Id. at 1243. Bethlehem Steel

was required to maintain temporary planking below its operations

in order to protect its own workers from falling and other workers

from being harmed by its operations. Id. Weiser was employed by

a subcontractor hired to weld permanent decking to the structure

after Bethlehem Steel removed the temporary planking and

relinquished control of each floor. Id. Weiser was injured when he

slipped and fell down an elevator shaft from the twelfth floor of the

structure after Bethlehem Steel had removed the temporary

planking on that floor and turned it over to the metal decking

subcontractor. Id. Weiser claimed that Bethlehem Steel was

negligent in removing the planking covering the elevator shaft on

the twelfth floor. Id. at 1243–44.

¶14 In evaluating Bethlehem Steel’s duty to Weiser, the superior

court first determined that under section 384 of the Restatement,

Bethlehem Steel “had the liability of a possessor of land with

respect to harm done by that portion of the work which it had

subcontracted to perform, erecting the building’s structural steel

frame.” Id. at 1245. Thus, Bethlehem Steel “had the duty to exercise

reasonable care to protect Weiser from harm which might be done

to him by dangerous conditions in the work Bethlehem Steel had

subcontracted to perform.” Id. at 1246. However, the court

determined that Bethlehem Steel’s responsibilities included only

erecting the building’s structural steel and laying temporary

planking on the floors immediately below its active operations to

prevent injuries from falls by Bethlehem Steel’s employees or

falling material. Id. Because the dangerous condition that caused

20110385

‐ CA 2013 UT App 240 7Cromwell v. A & S Construction, Inc.

Weiser’s injuries—the open elevator shaft—was created by the

general contractor, and because making the dangerous condition

safe on floors where it was not operating was not within the scope

of Bethlehem Steel’s contractual duties, Bethlehem Steel had no

duty to cover the elevator shaft to ensure workers’ safety where it

was no longer working. Id. Rather, because the general contractor

had created the dangerous condition of the elevator shaft and

Bethlehem Steel had relinquished control of the twelfth floor, the

duty to protect against such injuries fell upon the general

contractor and the subcontractor in control of the area at the time

of the accident. Id. at 1246–47.

¶15 We find the Bethlehem Steel court’s analysis and application

of section 384 of the Restatement persuasive here. Guns & Hoses

contracted to perform door framing and installation of doors

throughout the home, including the installation of doors at the

access to the elevator shaft. Guns & Hoses therefore had a duty to

exercise reasonable care to protect other workers from dangerous

conditions in the work that Guns & Hoses had contracted to

perform—installation of doors. Cf. id. at 1245. Thus, Guns & Hoses

would be liable for injuries caused by deficient installation or other

flaws in its own work that rendered that work dangerous to others.

However, Guns & Hoses did not create the dangerous condition of

the empty elevator shaft, nor did it exercise any control over the

condition of the shaft. Cromwell concedes in his complaint that

A&S “was solely responsible for maintaining an open empty

elevator shaft behind a hinged bedroom door.” A&S controlled all

work in and around the elevator shaft both before and after Guns

& Hoses completed its work and turned it over to A&S. A&S

directed Guns & Hoses to install the doors at the access to the

empty elevator shaft. While Guns & Hoses had a duty to exercise

reasonable care in installing the doors, that duty did not extend to

ensuring the safety of other workers around the dangerous

condition created by A&S.

20110385

‐ CA 2013 UT App 240 8Cromwell v. A & S Construction, Inc.

B. Duty of One Who Undertakes to Render Services

¶16 Cromwell also argues that once Guns & Hoses took steps to

secure the doors in front of the elevator shaft, “it also owed a duty

of care to others on the job site because it affirmatively undertook

the duty to protect against and warn of the danger.” “Where one

undertakes an act which he has no duty to perform and another

reasonably relies upon that undertaking, the act must generally be

performed with ordinary or reasonable care.” Stuckman ex rel.

Nelson v. Salt Lake City

, 919 P.2d 568, 573 (Utah 1996) (citation and

internal quotation marks omitted).

¶17 We do not reach the question of whether Guns & Hoses

owed a duty on this basis because Cromwell has not properly

presented the issue to this court. An appellate brief must contain

“citation to the record showing that the issue was preserved in the

trial court” or “a statement of grounds for seeking review of an

issue not preserved in the trial court.” Utah R. App. P.

24(a)(5)(A), (B). Cromwell has not identified where this argument

was raised before the district court, and our review of the record

does not show that Cromwell “specifically raised” the issue and

“introduce[d] supporting evidence or relevant legal authority” to

afford the district court an opportunity to rule on the issue. See 438

Main St. v. Easy Heat, Inc.

, 2004 UT 72, ¶ 51, 99 P.3d 801 (citation

and internal quotation marks omitted). Rather, Cromwell’s

argument on this claim before the district court consisted of one

cursory statement in his memorandum opposing summary

judgment and another at oral argument, neither of which were

supported with reference to relevant legal authority or supporting

evidence addressing the elements of this claim. Moreover,

Cromwell has not adequately developed this argument in his

briefing to this court. Our rules require “not just bald citation to

authority but development of that authority and reasoned analysis

based on that authority.” See Torrie v. Weber County

, 2013 UT 48,

¶ 19 (citation and internal quotation marks omitted). Because

Cromwell failed to preserve this issue before the district court or

adequately brief it for decision by this court, we decline to address

it further.

20110385

‐ CA 2013 UT App 240 9Cromwell v. A & S Construction, Inc.

¶18 Cromwell has not demonstrated that Guns & Hoses owed

any duty to him to protect him from the risk of falling into the

elevator shaft. We therefore conclude that the district court did not

err in determining that Guns & Hoses owed no duty to Cromwell

at the time of his injury.

II. Because Guns & Hoses Had No Duty to Protect Cromwell

from this Injury, Summary Judgment Was Appropriate.

¶19 Cromwell argues that summary judgment was not

appropriate because the district court erred in determining that

there were no disputed issues of material fact. Summary judgment

is appropriate only when there is “no genuine issue as to any

material fact” and the moving party is entitled to judgment as a

matter of law. See Begaye v. Big D Constr. Corp.

, 2008 UT 4, ¶ 5, 178

P.3d 343 (citation and internal quotation marks omitted). However,

the disputed facts identified by Cromwell relate only to whether

Guns & Hoses breached any duty it owed to him. Because

Cromwell has not demonstrated that Guns & Hoses owed a duty

to protect him from the injuries he sustained in the fall, any

disputed facts relating to whether Cromwell breached a duty are

not material. The district court accordingly did not err in

concluding that there was no genuine issue as to any material fact

that would preclude summary judgment. See id. Summary

judgment was therefore appropriate because Guns & Hoses was

entitled to judgment as a matter of law. See Tallman v. City of

Hurricane

, 1999 UT 55, ¶ 5, 985 P.2d 892.

¶20 Cromwell also argues that the district court failed to view

the facts and inferences in the light most favorable to him as the

nonmoving party. However, the facts that Cromwell asserts the

district court failed to view in his favor all relate to whether Guns

& Hoses breached a duty. Absent a showing that prejudice likely

resulted from the district court’s ruling, “we will not reverse [the]

trial court for committing harmless error.” State v. Vargas

, 2001 UT

5, ¶ 48, 20 P.3d 271 (alteration in original) (citation and internal

quotation marks omitted). The facts related to breach of a duty are

not material, because Cromwell has not demonstrated that Guns &

Hoses owed him a duty. Accordingly, any error in the district

20110385

‐ CA 2013 UT App 240 10Cromwell v. A & S Construction, Inc.

court’s failure to view those facts and inferences in the light most

favorable to Cromwell would be harmless.

CONCLUSION

¶21 Guns & Hoses’ duty to exercise reasonable care in hanging

doors at the access to an empty elevator shaft did not extend to

securing that shaft to prevent harm to other workers on the site.

Cromwell has not demonstrated that Guns & Hoses owed to him

any other duty that would support his claim of negligence. The

district court’s grant of summary judgment was therefore correct,

and any error in the district court’s consideration of the facts was

harmless.

¶22 Affirmed.

20110385

‐ CA 2013 UT App 240 11