concurring in part; dissenting in part, in which URBIGKIT, J., joins.
I agree with the majority opinion’s holding that:
«* * * ^-|n owner 0f a work site who retains the right to direct the manner of an independent contractor’s performance or assumes affirmative duties with respect to safety owes a duty of reasonable care to an employee of the independent contractor even if the employee is injured doing the very work the contractor was hired to perform.”
I cannot agree, however, with the majority’s application of the law in this case with regard to Chevron.
We recently recognized that an owner may may retain control over certain safety aspects of an independent contractor’s performance without destroying the independent contractor relationship in Noonan v. Texaco, Wyo., 713 P.2d 160 (1986).1 There we found that even though the owner retained the right to require the individual contractor to use safe equipment, material and supplies, such was insufficient to destroy the individual contractor status. Moreover, we encouraged such a practice:
“* * * We think an owner who undertakes to see that an independent contractor operate in a safe manner ought not be penalized. The reservation of a right to require safe equipment, material, and supplies to be used by the contractor is not without justification or reason. The owner has a vital interest in assuring himself that his well will be drilled efficiently, in a good workmanlike manner, at a reasonable cost, and that the final result is as good as possible. Good, safe equipment is a substantial factor in insuring that performance. But, a simple reservation of a right to inspect and secure that benefit does not cause the contractor to become the owner’s employee, for the owner has not taken over the details of safety with respect to the contractor’s employees.
“The contractor still accepts and reviews applications for employment, determines who to hire, presumably knows which potential employees have accident records and their past employment history. The contractor-employer is responsible for safety training of his employees and for training them in the performance of their work. He provides safety equipment and manuals and retains the right to discipline or even discharge them for unsafe practices. The details of safety being in control of the contractor rather than Texaco, it is apparent to us that Texaco’s minimal, and we feel necessary, involvement in safety did not result in the contractor becoming Texaco’s employee so that Texaco became liable to appellant under the doctrine of responde-at superior.” Id., at 167.
When reviewing a summary judgment on appeal, this court sits in the same position as the district court, using the same material and following the same standards. A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact. A material fact is one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or de*902fense asserted by the parties. Upon review of a summary judgment, we view the record from the vantage point most favorable to the party opposing the motion. Noonan v. Texaco, supra; Garner v. Hickman, Wyo., 709 P.2d 407 (1985); Dudley v. East Ridge Development Company, Wyo., 694 P.2d 113 (1985).
In the present case the following facts are undisputed. Automation and Electronics, Inc. (Automation) was an individual contractor for Chevron hired to erect power lines. If Automation wished to have the power turned off, it made such request to Chevron. On the day of the accident, appellant was assigned to paint the metal supports of the H-Frame structure, which were located below the platform upon which the transformers sit. Appellant was not told to go on the platform, or paint any area which would require him to get on the platform. While painting, appellant crawled onto the platform and was injured when electricity arced through his body. Automation did not request a power shutdown before appellant proceeded with his task of painting the H-Frame supports. In my opinion, this is the crucial deciding fact in this case. As a matter of law, Chevron cannot be held liable for appellant’s injuries when absolutely no request was made for a power shutdown, and Chevron did not know that appellant would get upon the platform. Whatever negligence there may be in the case, there simply is none that can be attributable to Chevron.
I agree with the majority’s assessment of the law. There are circumstances under which an owner may be held liable for his negligence if he retains control over the work to be done. But in this case, such principles are misapplied. The procedure for a power shutdown was well established. To have the power turned off, Automation had to make such request from Chevron, and in this case, there simply was no request made.
Automation is in the business of electrical construction and it presumably possesses expertise in that field. Automation is presumed to understand the nature and inherent dangers of electricity. Insofar as Chevron is concerned, it matters not what appellant was told to do by his employer, Chevron had no control over appellant or the manner in which he performed his duties other than general safety considerations.
Appellant argues that Chevron, as owner of the premises, had a duty to provide safe working conditions on its premises for employees of individual contractors. Abeyta v. Hensley, Wyo., 595 P.2d 71 (1979); and 41 Am.Jur.2d Independent Contractors § 27 (1968). I agree with that abstract principle, but there is no showing that Chevron failed to do just that. Again, Automation failed to request that Chevron de-energize the power line. Simply having a power line on one’s property is not negligent in and of itself.
In McKee v. Pacific Power and Light Company, Wyo., 417 P.2d 426 (1966), we upheld a directed verdict for the defendant power company when the plaintiff electrician was injured by a power line while working on a cable for a television company. The plaintiff contended, among other things, that the power company was negligent because it did not de-energize the line while the plaintiff was working on the telé-vision cable. Although the case was decided before the adoption of comparative negligence and its application to this case is limited, this court found it significant that neither the plaintiff nor his employer ever requested that the power be shut off. As to the liability of the owner, we stated: “In Wyoming, it is a settled rule that the owner of facilities is not an insurer of the safety of his invitees.” Id., at 429.
Having found no genuine issues of material fact, and there being no evidence that Chevron violated any duty, I would affirm the summary judgment in all respects.
. I realize the Noonan case involved an injury caused by an instrumentality owned by the independent contractor, not the owner as here. Nevertheless, the language as to the owner retaining limited control over the safety aspects of the individual contractor’s performance is applicable here.