dissenting.
I respectfully dissent. I believe that the contractor in this case accepted the responsibility for seeing that the work on the roof was performed safely.
The contract provisions imposed a positive duty on the general contractor to initiate safety programs and take reasonable precautions for the safety of all employees on the work. The general contractor’s supervisor, Michael Smith, had been designated as the contractor’s employee for initiating and overseeing job safety. At trial, he conceded that he had responsibility for overseeing the general working conditions for safety. He knew that he had the authority to stop work being done in a dangerous manner.
*214Smith was concerned about the way the job of removing the plywood roof was being done, and because he feared that some of the plywood sheets might fall, he did not let anyone work underneath the roof while the job was in progress. The reason that he did not try to stop the work was not because he felt he lacked safety authority or responsibility, but only because he did not feel it was unsafe except to people who were working below.
There was evidence that after the plywood was dislodged, it was left lying in random fashion on the roof while the workers proceeded to reinstall it. Cecil Hickman, a safety engineer, testified that leaving the plywood sheets dislodged on the roof where employees were walking was unsafe. This, taken in conjunction with the evidence that the general contractor retained control of safety measures and could have curtailed an unsafe procedure, is sufficient to support the verdict. See 2 Construction Law (MB) 1110.04[2] at 10-68.
I do not see a distinction between this case and Fluor Corp. v. Sykes, 3 Ariz.App. 211, 413 P.2d 270 (1966). In Fluor, a subcontractor’s employee was killed as the result of welding in a shaft that was not properly ventilated. Division Two of the court of appeals concluded that the general contractor could be liable to the worker’s survivors because it had retained control of the work. The evidence showed that the general contractor had provided each subcontractor with a pamphlet noting that safety on the project was the general contractor’s responsibility. Shortly before the accident, the general contractor had received a warning bulletin from the government, for whom the job was undertaken, concerning a casualty as the result of insufficient ventilation at a welding site. The general contractor took no action as a result of having received the warning.
The court relied on section 414 of the Restatement (Second) of Torts which provides:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
It went on to quote comment a to section 414 to the effect that if a contractor retains control over job safety, he may be liable for injuries that result from a failure to supervise with care. The court also observed that under comment c, the general contractor would not be liable unless it retained some degree of control over the manner in which the work was done. It is not enough if the contractor “merely has the general right to order the work stopped or resumed ... [tjhere must be such a retention of a right of supervision that the [subcontractor is not entirely free to do the work in his own way.”
As I have already observed, in this case the general contractor’s supervisor conceded that he could stop work that was being performed in a dangerous manner. The only reason he did not do so in this case was because he did not consider the manner in which the job was being done to be unsafe. Even if he was only referring to the manner in which the roof was being removed when he said this, it is a concession on his part that had he felt that any part of the job was being done in an unsafe manner he could have ordered it stopped. This is more than “merely a general right to order the work stopped.” It is, in essence, the right to require the work to be done in a safe manner.
The majority distinguishes Fluor with the comment that in Fluor there was substantial evidence that the details of the work from which the injury ensued had been taken over by the general contractor. I do not see that in Fluor. In Fluor, there was an emphatic notice to subcontractors of the general contractor’s responsibility for safety, but there was nothing to suggest the general contractor actually had anything to do with the way the welding was performed. The general contractor’s potential liability was predicated only upon the retained right to supervise job safety and the fact that the general contractor had inspectors on the site who could have observed the unsafe welding practice that caused the accident.
*215The majority relies on Chesin Constr. Co. v. Epstein, 8 Ariz.App. 312, 446 P.2d 11 (1968). In that case, the general contractor had the right to stop a subcontractor from proceeding with work in an unsafe manner, but the contract documents placed the responsibility for safety precautions on the subcontractor. The court in Ckesin distinguished Fluor on this basis alone.
The other cases upon which the majority relies for the proposition that the contractual responsibility for safety does not equate with sufficient retained control to make the general contractor liable for injuries to employees of a subcontractor are not particularly persuasive. For example, in Cummings v. Hoosier Marine Properties, Inc., 173 Ind.App. 372, 363 N.E.2d 1266 (1977), there was no contractual responsibility for safety placed on the defendant developer, the defendant developer did not acknowledge any responsibility for safety, and there was no evidence that the developer had any supervision or control of the work. The opinion in Samodai v. Chrysler Corp., 178 Mich.App. 252, 443 N.W.2d 391 (1989), fails to spell out the provisions of the contract at issue with sufficient specificity to shed much light on the issue. In West v. Morrison-Knudsen Co., 451 F.2d 493 (9th Cir.1971), while the general contractor had a contractual responsibility for safety imposed on it by virtue of its agreement with the government, there was no allegation that the general contractor in any way had any right to control the subcontractor’s employees. Finally, in Morris v. City of Soldotna, 553 P.2d 474 (Alaska 1976), the contract, unlike the agreement in the case before us, imposed no positive duty on the general contractor to oversee safety on the job.
The contractor in this case has advanced other arguments as to why it ought not be liable for this injury, even if the law is as I have stated it. Since my view does not prevail, it is unnecessary for me to deal with those arguments.