Sterud v. Chugach Electric Ass'n

RABINOWITZ, Chief Justice,

dissenting.

I believe that each of the claims appellants have advanced in this appeal requires resolution of genuine issues of fact and therefore dissent from the. majority’s af-firmance of summary judgment in favor of Chugach.

As to the question of vicarious liability, I think that the record provides support for the conclusion that Smith knew or should have known that employees traveled to and from Anchorage in Hansen’s plane.1 That conclusion gives rise to the possibility that Smith was, or should have been, aware of dangers involved in flying in Hansen’s aircraft and negligently failed to warn Little-field of those dangers. Because Chugach could be held vicariously liable for negligent acts committed by Smith in his “labor broker” role, I believe that Littlefield’s representative has raised a genuine issue of fact as to Chugach’s liability under the doctrine of respondeat superior.

*829Part of the work entrusted to Smith, as independent contractor, included transportation of the workers between Anchorage and the remote construction site. As indicated above, see note 1 supra, I think the record contains support for the claim that Hansen was relied upon to provide some of the necessary transportation services. Since, as the majority observes, a factual question is presented as to the degree of control Chugach exercised over the transportation of workers to and from the construction site, I believe that appellants have raised issues of fact sufficient for them to avoid summary judgment on the claims based on section 414 of the Restatement.2

Finally, as to the assumption of duty theory, I believe the inference drawn by the majority to the effect that unsafe practices at the airfield could not have been causally related to the accident is unwarranted. I cannot agree that, as a matter of law, there could not have been a causal connection between Chugach’s purportedly negligent operation of the airfield and the accident in which Hansen, Sterud, and Littlefield died. If, as we must assume for purposes of this appeal, Chugach assumed a duty to operate the airfield in a safe manner, appellants are entitled to a determination, by the trier of fact, of whether a breach of that duty was a cause of the accident.

I would reverse the superior court’s entry of summary judgment and remand for trial of the factual issues raised by appellants in their claims against Chugach.

. Gary Center, Smith’s superintendent, stated:

Well, I don’t recall exactly when you’re talking about but I knew [Hansen] was carrying two men in his plane when he flew because I was told by the man that called me. Prior to that time I don’t know specifically if he was carrying any but I can assume that he was because that many men over there, and when there’s a plane going back and forth, they invariably jump on it if they can and come in for a night.

According to another employee at the construction site, “you could always come in with Barney [Hansen] if he wasn’t loaded.” Further testimony indicated that “it was pretty common knowledge on the job site that Barney [Hansen] was flying in and out carrying people with him.”

. Restatement (Second) of Torts § 414 (1965) reads:

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.