6. “When the owner of a place of employment provides a reasonably safe
workplace and exercises no control thereafter, the owner has complied with the
responsibilities imposed under W.Va. Code 21-3-1 [1937].” Syllabus Point 3, Henderson v.
Meredith Lumber Co., Inc., 190 W.Va. 292, 438 S.E.2d 324 (1993).
7. “The 'reasonably safe place to work' theory may not be used against the
owner of a place of employment when the owner exercises no control over the equipment
provided by the contractor for use by the contractor's employees.” Syllabus Point 3, Taylor
v. Sears, Roebuck and Co., 190 W.Va. 160, 437 S.E.2d 733 (1993).
8. “A principal has a non-delegable duty to exercise reasonable care when
performing an inherently dangerous activity; a duty that the principal cannot discharge by
hiring an independent contractor to undertake the activity.” Syllabus Point 2, King v. Lens
Creek Ltd. Partnership, 199 W.Va. 136, 483 S.E.2d 265 (1996).
9. “To constitute an inherently dangerous activity, the work must be
dangerous in and of itself and not dangerous simply because of the negligent performance
of the work, and that danger must be naturally apprehended by the parties when they contract.
Only then will the work constitute an inherent danger that places a non-delegable duty upon
the one ordering it to protect third parties against the resulting injury.” Syllabus Point 3, King v. Lens Creek Ltd. Partnership, 199 W.Va. 136, 483 S.E.2d 265 (1996).
10. As a general rule, an expert witness may not testify as to questions of
law such as the principles of law applicable to a case, the interpretation of a statute, the
meaning of terms in a statute, the interpretation of case law, or the legality of conduct. It is
the role of the trial judge to determine, interpret and apply the law applicable to a case.
Ketchum, Justice:
In this appeal from the Circuit Court of Logan County, a plaintiff seeks to
reverse a circuit court order granting summary judgment in favor of a defendant. The circuit
court's order held that the defendant owed no duty of care to the plaintiff under our
independent contractor defense.
As set forth below, we affirm the circuit court's summary judgment order in
favor of the defendant.
In the Spring of 2006, plaintiff Robert France was 16 years old and in the 10th grade in high school. Third-party defendant Danny Hensley, doing business under the name
“Royalty Builders” (hereafter referred to as “Royalty Builders”) hired Mr. France to work
for him as a roofer during his Spring Break from high school. The plaintiff had never done
roofing or construction work in the past.
Defendant Southern Equipment Company (“Southern Equipment”) owned a
building in Logan County, West Virginia that needed a new sheet metal roof. Southern
Equipment obtained an estimate for the purchase and installation of a new roof from
defendant Quality Metal Roof Manufacturing and Sales, Inc. (“Quality Metal Roof”).
Satisfied with the estimate, Southern Equipment gave Quality Metal Roof a down payment
for the cost of complete “installation and removal” of the roof.
Unbeknownst to Southern Equipment, Quality Metal Roof did not remove or
install roofing materials. Quality Metal Roof did not tell Southern Equipment that it only
manufactured and supplied sheet metal roofing materials, and hired another company to
install the customer's new roof. After receiving the down payment from Southern
Equipment, Quality Metal Roof hired Royalty Builders to install Southern Equipment's new
roof. Quality Metal Roof never informed Southern Equipment that Quality Metal Roof
employees were not installing the new roof.
On April 12, 2006, a crew of eight workers for Royalty Builders _ including
the plaintiff _ were working to replace Southern Equipment's sheet metal roof. The parties
agree that none of Royalty Builders's workers employed any safety equipment to protect
against falling, and that Southern Equipment had no knowledge of the requirement for, or
lack of use of, safety equipment. When the plaintiff stepped on a piece of sheet metal that
had been loosened, the sheet flipped and the plaintiff fell through the roof, landing on the
concrete floor approximately 25 feet below. The plaintiff sustained a serious head injury in
the fall, and continues to suffer deficits as a result of the fall.
On August 11, 2006, plaintiff Robert France _ through his parents Langley and
Inez France _ filed this lawsuit (See footnote 1) against Quality Metal Roof and against Southern Equipment
Company. Royalty Builders, the installer of the roof and the plaintiff's employer, was not
sued by the plaintiff. (See footnote 2) The plaintiffs' complaint alleged that Quality Metal Roof and
Southern Equipment had failed to provide the plaintiff with a reasonably safe work
environment, because they failed to require Royalty Builders's employees to use some means
of fall protection, or otherwise guard against the plaintiff falling through the roof. The
plaintiffs also contended that defendants Quality Metal Roof and Southern Equipment were
vicariously liable and strictly liable to the plaintiff for the negligence of Royalty Builders,
because the defendants exposed him to the “abnormally and inherently dangerous task of
removing and installing roofing.” Lastly, the plaintiffs asserted that the defendants were
negligent in the selection and hiring of Royalty Builders, in part because Royalty Builders
employed “child labor” to perform roofing work in violation of state and federal law.
After substantial discovery and a mediation session, defendant Quality Metal
Roof _ which hired Royalty Builders to install the new roof _ settled with the plaintiffs for
$875,000.00.
Defendant Southern Equipment, however, filed a motion for summary
judgment pursuant to Rule 56(c) of the Rules of Civil Procedure. Southern Equipment
argued in its motion that it owed no legal duty of care to Robert France. First, Southern
Equipment contended that Royalty Builders was an independent contractor that it simply did
not hire, and over which Southern Equipment did not retain the right to control the details
of the work being performed. Furthermore, Southern Equipment argued that it could not be
responsible for negligently hiring Royalty Builders _ the plaintiff's employer _ because it
was undisputed that Southern Equipment did not hire and did not contract with Royalty
Builders to remove and install the roof at its facility. Instead, Southern Equipment argued
that the evidence plainly showed that it contracted to hire Quality Metal Roof, which then
hired Royalty Builders without the knowledge of Southern Equipment. Additionally,
Southern Equipment argued that Royalty Builders was an independent contractor, because
Southern Equipment was not actively involved in the day-to-day operations or activities of
Royalty Builders and did not continually monitor the work area. Lastly, Southern Equipment
argued that roofing is not an inherently dangerous activity for which a property owner could
be subjected to strict liability.
On November 6, 2007, the circuit court entered an order adopting Southern
Equipment's arguments and granting summary judgment to Southern Equipment on all
claims against it by the plaintiffs.
The plaintiffs now appeal the circuit court's November 6, 2007 order.
The determination of whether a defendant in a particular
case owes a duty to the plaintiff is not a factual question for the
jury; rather the determination of whether a plaintiff is owed a
duty of care by a defendant must be rendered by the court as a
matter of law.
The plaintiffs argue on appeal that the circuit court's summary judgment order
was wrong in three respects, and contend that questions of fact exist regarding whether
Southern Equipment owed plaintiff Robert France a duty of care. First, the plaintiffs argue
that the circuit court erred in ruling that Southern Equipment owed no duty to Robert France
because he was employed by an independent contractor (Royalty Builders), and specifically
argue that the circuit court erred in finding that Southern Equipment could not be held liable
under the “illegal activity” exception to the independent contractor defense. Second, the
plaintiffs argue that the circuit court improperly held that replacing roofing materials is not
an “inherently dangerous” activity. And finally, because the plaintiffs' expert was of the
opinion that Southern Equipment could be held liable as an “employer” under federal safety
laws, the plaintiffs assert that the circuit court erred in interpreting those same federal safety
laws differently from the plaintiffs' expert to find that Southern Equipment was not an
“employer” on a “multi-employer worksite” as defined in those laws. We address these
arguments in turn.
There are four general factors which bear upon whether a master-servant relationship exists for purposes of the doctrine of respondeat superior: (1) Selection and engagement of the servant; (2) Payment of compensation; (3) Power of dismissal; and (4) Power of control. The first three factors are not essential to the existence of the relationship; the fourth, the power of control, is determinative.In Syllabus Point 1 of Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976), we specified that if a defendant establishes that it had no right to control a contractor's work, then the contractor is an “independent contractor:”
One who would defend against tort liability by
contending that the injuries were inflicted by an independent
contractor has the burden of establishing that he neither
controlled nor had the right to control the work, and if there is
a conflict in the evidence and there is sufficient evidence to
support a finding of the jury, the determination of whether an
independent contractor relationship existed is a question for jury
determination.
In Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 524 S.E.2d 688 (1999)
we clarified that a defendant may exercise broad supervision of an independent contractor's
work, and yet still not “control the work” to such a degree as to make the contractor an
“employee.” We stated, in Syllabus Point 4 of Shaffer, that:
An owner who engages an independent contractor to
perform a job for him or her may retain broad general power of
supervision and control as to the results of the work so as to
insure satisfactory performance of the contract _ including the
right to inspect, to stop the work, to make suggestions or
recommendations as to the details of the work, or to prescribe
alterations or deviations in the work _ without changing the
relationship from that of owner and independent contractor, or
changing the duties arising from that relationship.
In the instant case, the circuit court concluded from an examination of the
record that there was no question of material fact that Southern Equipment “neither engaged
Royalty Builders to do the work nor had any power to control the work.” The circuit court
therefore concluded that Royalty Builders was an independent contractor, and concluded that
Southern Equipment could not be held vicariously liable as Royalty Builders's _ and thereby,
plaintiff Robert France's _ employer.
The plaintiffs' argument is based solely upon the second element of the illegal work exception to the independent contractor defense, which we delineated in Syllabus Point 6 of Shaffer v. Acme Limestone Co., Inc., supra, where we said (with emphasis added):
The independent contractor defense is unavailable to a
party employing an independent contractor when the party (1)
causes unlawful conduct or activity by the independent
contractor, or (2) knows of and sanctions the illegal conduct
or activity by the independent contractor, and (3) such
unlawful conduct or activity is a proximate cause of an injury or
harm.
Defendant Southern Equipment concedes that the plaintiff was illegally
employed by Royalty Builders. However, Southern Equipment argues that the plaintiffs are
ignoring the elements of proof required by Syllabus Point 6 of Shaffer.
The second element of the test set forth in Syllabus Point 6 of Shaffer requires
proof by the plaintiffs of two things _ that Southern Equipment both knew of and sanctioned
the illegal conduct or activity _ before Southern Equipment can be stripped of the
independent contractor defense. Southern Equipment argues that there is no evidence in the
record from which a jury could deduce that, before the accident occurred, Southern
Equipment actually knew that the plaintiff was under-aged, and _ more importantly _ no
evidence that Southern Equipment sanctioned Royalty Builders's illegal employment of the
plaintiff. Southern Equipment contends that the record is clear that it never retained Royalty
Builders, but rather hired defendant Quality Metal Roof to do the roofing work.
Unbeknownst to Southern Equipment, Quality Metal Roof retained Royalty Builders, and it
was Royalty Builders who illegally hired the plaintiff to work during the week of Spring
Break. Southern Equipment takes the position that the fact that Southern Equipment's
manager briefly saw a younger person than the other workers on the roof does not equate to
knowledge or the sanctioning of the illegal employment of the plaintiff.
Further, Southern Equipment argues that the facts in this case are substantially
different from those in Shaffer v. Acme Limestone, supra, so different that it is clear that the
exception to the independent contractor defense adopted in Shaffer is inapplicable to the
instant case.
In Shaffer, the plaintiff's decedent was killed in a collision with a truck that
allegedly had defective brakes. The plaintiff produced evidence showing that the truck _
owned by Spade Trucking _ had been routinely overloaded, in violation of state law, with
stone by defendant Acme Limestone, and that this illegal activity had damaged the truck's
brakes. Acme argued that it could not be held liable because Spade Trucking was an
independent contractor. The Court, however, adopted the above-cited Syllabus Point 6 as
an “illegal activity” exception to the independent contractor defense. Because Acme
Limestone had participated in illegally overloading its contractor's trucks, the Court
concluded that a jury could find Acme Limestone liable for knowing of and sanctioning the
illegal conduct or activity by the independent contractor, if that illegal activity proximately
caused the plaintiff's injuries.
Southern Equipment argues that, as the Court noted in Shaffer, an employer is
not liable for the negligence of an independent contractor where the work is “not in itself
unlawful[.]” Shaffer, 206 W.Va. at 345, 524 S.E.2d at 700 (quoting Law v. Phillips, 136
W.Va. 761, 771, 68 S.E.2d 452, 458 (1952)). Southern Equipment asserts that roofing work
is not in itself unlawful. It also contends that, unlike the defendant employer in Shaffer,
Southern Equipment did not know of, sanction, or engage in or facilitate any illegal conduct
by the independent contractor, Royalty Builders.
After carefully examining the record, we agree with Southern Equipment's
arguments. On this record, we see nothing to suggest that Southern Equipment sanctioned
Robert's illegal employment in the roofing business by Royalty Builders. To “sanction” an
activity requires some active approval or encouragement. (See footnote 5) In Shaffer v. Acme Limestone, we
found that an employer could be held liable for the acts of an independent contractor because
it had sanctioned illegal conduct by actually engaging in and facilitating the overloading of
trucks with stone. Clearly, our holding in Shaffer requires something more than the passing
knowledge of a Southern Equipment manager when he briefly looked up on the roof and saw
someone who looked younger than his co-workers. There is no evidence that the manager
thought that the plaintiff was under-aged (16 years old), or thought that illegal conduct was
taking place, and certainly no evidence suggesting that the manager approved of and
encouraged the illegal employment of the plaintiff by Royalty Builders. (See footnote 6) Our ruling in this
case in no way expands or restricts this Court's legal holdings in Shaffer.
Additionally, our law is clear that a property owner only has a duty to turn over
a reasonably safe workplace to an independent contractor; the property owner generally
cannot be held liable for any hazards thereafter created by the independent contractor.
W.Va. Code, 21-3-1 [1937] states, in part:
Every employer and every owner of a place of
employment, place of public assembly, or a public building, now
or hereafter constructed, shall so construct, repair and maintain
the same as to render it reasonably safe.
See also, Syllabus Point 3, Pack v. Van Meter, 177 W.Va. 485, 354 S.E.2d 581 (1986)
(“Under W.Va.Code, 21-3-1, the employer and the owner of a place of employment, place
of public assembly, or a public building is affixed with a statutory responsibility to maintain
such place in a reasonably safe condition.”). We have made clear, however, that once an
independent contractor assumes control of the premises, the property owner is relieved of
liability for conditions created by the independent contractor. As we said in Syllabus Point
3 of Henderson v. Meredith Lumber Co., Inc., 190 W.Va. 292, 438 S.E.2d 324 (1993):
When the owner of a place of employment provides a
reasonably safe workplace and exercises no control thereafter,
the owner has complied with the responsibilities imposed under W.Va. Code 21-3-1 [1937].
To the same effect, in Syllabus Point 3 of Taylor v. Sears, Roebuck and Co., 190 W.Va. 160,
437 S.E.2d 733 (1993) we ruled that:
The “reasonably safe place to work” theory may not be
used against the owner of a place of employment when the
owner exercises no control over the equipment provided by the
contractor for use by the contractor's employees.
The central point of these two cases is that a property owner's duty under W.Va. Code, 21-3-
1 “is directly related to employment activity _ activity controlled by the employer _ and the
owner's duty is limited to providing a reasonably safe workplace, unless the owner continues
to exercise control of the place of employment.” Henderson v. Meredith Lumber Co., Inc.,
190 W.Va. at 326, 438 S.E.2d at 294.
In the instant case, the record is clear that Southern Equipment turned over a
reasonably safe workplace to Royalty Builders and its employees, and thereafter exercised
no control of the manner in which the roofing work was performed nor any control over the
equipment used by Royalty Builders. On this record, the circuit court did not err in finding
no question of material fact suggesting that Southern Equipment sanctioned Royalty
Builders's illegal employment of the plaintiff.
A principal has a non-delegable duty to exercise reasonable care when performing an inherently dangerous activity; a duty that the principal cannot discharge by hiring an independent contractor to undertake the activity.
See also, Syllabus Point 1, Chenoweth v. Settle Eng'rs, Inc., 151 W.Va. 830, 156 S.E.2d 297
(1967) (overruled, in part, on other grounds by Sanders v. Georgia-Pacific Corp., 159 W.Va.
621, 225 S.E.2d 218 (1976)) (“The general rule is that where one person has contracted with
a competent person to do work, not in itself unlawful or intrinsically dangerous in character,
and who exercises no supervision or control over the work contracted for, such person is not
liable for the negligence of such independent contractor or his servants in the performance
of the work.”).
The purpose of the inherently dangerous work exception was stated this way:
An inherently dangerous function cannot be delegated
because the responsibility to ensure that all reasonable
precautions are taken before engaging in a dangerous activity is
of such importance to the community that the principal should
not be permitted to transfer its duty to another. W. Page Keeton
et al., Prosser and Keeton on the Law of Torts § 71, at 511-12
(5th ed.1984).
King, 199 W.Va. at 142 n. 9, 483 S.E.2d at 271 n. 9. “The exception is grounded in a
recognition that the possibility of harm to others is so great when the work activity is
inherently dangerous that the law tolerates it only on terms of insuring the public against
injury. We impose vicarious liability under these circumstances to insure that the public has
legal access to a financially responsible party.” Shaffer, 206 W.Va. at 343, 524 S.E.2d at 698
(quoting D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 465, 986 S.W.2d 836, 840-
41 (1999)). See also Peneschi, 170 W.Va. at 521, 295 S.E.2d at 12 (“the employer of an
independent contractor cannot insulate himself from liability to third parties for the
consequences of the use of abnormally dangerous instrumentalities by employing an
independent contractor.”). “This rule was intended for application to commercial enterprises,
i.e., contractors and subcontractors, not to homeowners who hire independent contractors to
do work on their homes.” Kizer v. Harper, 211 W.Va. 47, 59, 561 S.E.2d 368, 380 (2001)
(Davis, J., dissenting).
In the instant case, the plaintiffs argue that the trial court erred in its conclusion
that the sheet metal roofing work at the Southern Equipment facility was not inherently
dangerous because the risk of harm could have been “eliminated by using reasonable care.” See Shaffer, 206 W.Va. at 343, 524 S.E.2d at 698 (quoting Shell Oil Co. v. Meyer, 705
N.E.2d 962, 978 (Ind. 1998) (“Work is intrinsically dangerous if the risk of injury involved
cannot be eliminated or significantly reduced by taking proper precautions.”).
We must therefore define inherently dangerous work, and determine if the
removal and installation of sheet metal roofing meets that definition. Syllabus Point 3 of King v. Lens Creek Ltd. Partnership, contains the following definition:
To constitute an inherently dangerous activity, the work
must be dangerous in and of itself and not dangerous simply
because of the negligent performance of the work, and that
danger must be naturally apprehended by the parties when they
contract. Only then will the work constitute an inherent danger
that places a non-delegable duty upon the one ordering it to
protect third parties against the resulting injury. (See footnote 8)
“It is sufficient if there is a recognizable and substantial danger inherent in the work, as
distinguished from a danger collaterally created by the independent negligence of the
contractor, which latter might take place on a job itself involving no inherent danger.”
Shaffer, 206 W.Va. at 344, 524 S.E.2d at 699 (quoting Woodson v. Rowland, 329 N.C. 330,
351, 407 S.E.2d 222, 235 (1991)).
To be clear, it is the task itself that must be inherently dangerous; if the danger
is created by a contractor's negligence, or the danger could be reduced or eliminated by
taking reasonable precautions, then the task is not inherently dangerous. An example of this
principle in action is found in Robertson v. Morris, 209 W.Va. 288, 546 S.E.2d 770 (2001)
(per curiam), a case with facts comparable to the instant case.
In Robertson, a homeowner hired a Mr. Adkins to cut down a tree. Mr. Adkins
then hired plaintiff Robertson to perform the work. As the plaintiff was working in the tree,
a gust of wind knocked him to the ground causing severe injuries. The plaintiff was not
wearing a safety rope or any safety equipment when he was injured. 209 W.Va. at 289, 546
S.E.2d at 771.
The plaintiff in Robertson argued that the defendant homeowner was not
entitled to rely on the independent contractor defense, in part because cutting down trees is
inherently dangerous work. 209 W.Va. at 289-90, 546 S.E.2d at 771-72. We stated the rule
that when one employs an independent contractor to do inherently dangerous work,
the employing party may be liable for a worker's injury even if
the employing party does not exercise control sufficient to
convert the relationship into an employment or agency
relationship _ but this is true only if the risk involved cannot be
eliminated or significantly reduced by taking proper
precautions.
209 W.Va. at 291-92, 546 S.E.2d at 773-74 (emphasis added). We ruled against the plaintiff
in Robertson, and found that the risk of cutting down the defendant's tree “could have been
significantly eliminated or reduced by using safety ropes or safety equipment.” 209 W.Va.
at 292, 546 S.E.2d at 774. We therefore concluded that “the work was not so inherently
dangerous to bring into play” the inherently dangerous work exception. Id.
We believe that the same reasoning applies to the instant case. Removing or
installing a sheet metal roof may only be considered inherently or intrinsically dangerous if
the risk of falling off or through the roof could not be eliminated or significantly reduced by
taking proper precautions. The plaintiffs have repeatedly asserted throughout the litigation
below that plaintiff Robert France's injuries were caused by the failure of Royalty Builders
to take proper precautions. On this record, we believe that the risk to the plaintiff could have
been eliminated or reduced by the reasonable use of safety ropes or other fall protection
equipment by Royalty Builders _ which, as we have noted before, was not sued by the
plaintiffs.
Accordingly, we cannot say that the circuit court erred in ruling that the roofing
activity at the Southern Equipment facility was not inherently dangerous.
The trial judge is the “sole source of the law,” and witnesses
should not be allowed to testify on the status of the law, just as
counsel are forbidden to argue law to jurors. Hearing statements
of “the law” from several sources would not be helpful to jurors.
As a general rule, an expert witness may
not give his [or her] opinion on a question of
domestic law [as opposed to foreign law] or on
matters which involve questions of law, and an
expert witness cannot instruct the court with
respect to the applicable law of the case, or
infringe on the judge's role to instruct the jury on
the law. So an expert may not testify as to such
questions of law as the interpretation of a statute
. . . or case law . . . or the meaning of terms in a
statute . . . or the legality of conduct.
32 C.J.S. Evidence § 634, at 503-04 (1996) (footnotes omitted). See also John W.Strong, McCormick On Evidence, Vol. 1 § 12,
p. 53 (1999) (stating that “[r]egardless of the rule concerning
admissibility of opinion upon ultimate facts, at common law[,]
courts do not allow opinion on a question of law, unless the
issue concerns foreign law.” (Footnotes omitted.)).
“Perhaps the most fundamental rule of our system of jurisprudence is that
questions of fact are to be determined by a jury and questions of law by a court.” Fitzwater
v. Spangler, 150 W.Va. 474, 478, 147 S.E.2d 294, 296 (1966). To uphold this axiom we hold
that, as a general rule, an expert witness may not testify as to questions of law such as the
principles of law applicable to a case, the interpretation of a statute, the meaning of terms in
a statute, the interpretation of case law, or the legality of conduct. It is the role of the trial
judge to determine, interpret and apply the law applicable to a case.
We now turn to the legal question regarding OSHA requirements on a “multi-
employer worksite,” and we begin our analysis of the law by looking to the Federal OSHA
statutes. The OSHA statutes state that only an “employer” may be liable under the Act for
death or serious injuries to “employees.” 29 U.S.C.A. § 654 (a) [1970] states that each
“employer:”
(1) shall furnish to each of his employees employment
and a place of employment which are free from recognized
hazards that are causing or are likely to cause death or serious
physical harm to his employees;
(2) shall comply with occupational safety and health
standards promulgated under this chapter.
29 U.S.C.A. § 652 (5) [1998] provides the definition of “employer”:
The term “employer” means a person engaged in a
business affecting commerce who has employees, but does not
include the United States (not including the United States Postal
Service) or any State or political subdivision of a State.
The OSHA statutes do not make reference to the “multi-employer worksite”
concept. It appears, however, that the doctrine was developed under the auspices of 29
U.S.C.A. § 654(a)(2) for application to cases involving general contractors at multi-
contractor worksites. In these cases, a hazard created and controlled by one contractor can
affect the safety of employees of other contractors on the site. A general contractor
supervising a construction project that employs multiple subcontractors _ where the general
contractor oversees the details of the work _ has a duty of safety to all workers on the site,
and will be held liable for safety violations that could reasonably have been prevented or
abated by reason of the general contractor's supervisory capacity. (See footnote 11)
Our research of the law of “multi-employer worksites” supports the trial court's
interpretation of OSHA. Courts appear to be nearly unanimous in holding that the owner of
premises on which work is being done _ whether by one contractor or by more than one
independent contractors _ is not a responsible “employer” under OSHA.
For example, in Kane v. J.R. Simplot Co., 60 F.3d 688 (10th Cir. 1995), a property owner hired an independent contractor to paint its grain silos. An employee of the independent contractor was injured when he fell from scaffolding _ scaffolding owned and erected by the independent contractor _ that had improperly secured by his supervisor. When the injured employee brought suit against the property owner, the court of appeals affirmed the dismissal of the suit. The court concluded that the property owner “had no duty to enforce OSHA regulations for work over which it had no control,” and no duty under OSHA “when an independent contractor is hired, and the employer has no control of the work place.” 60 F.3d at 694. (See footnote 12)
Accordingly, on the record presented by the parties, we find that the circuit
court did not err in holding that Southern Equipment, as the owner of the worksite, could not
be held liable under OSHA. Plaintiff Robert France was not an employee of Southern
Equipment, but was instead an employed by independent contractor Royalty Builders. Under
these circumstances, Southern Equipment had no duty to enforce OSHA regulations for work
over which it had no control.