with whom DIMOND, Justice Pro Tem. joins (dissenting).
While I agree with the majority in its discussion of the Restatement of Torts (Second) §§ 414, 416, 422 and 427 which relate to retaining control and to vicarious liability, I must dissent in the result of this case. It is my opinion that where a state Department of Highways inspector knows or should have known of existing violations of safety regulations, he has a duty to act reasonably to secure correction of those violations. A breach of this duty by a state agent should create direct liability for negligence at common law.
While it is true that the state retained no direct control over the occupational safety of the employees of the independent contractor, the Department of Highways had assigned an inspection party consisting of a project engineer, his assistant, a chief inspector and two other inspectors to the project on a full-time basis. No state employee ever requested Manson-Osberg to provide safety equipment or officially criticized M-O’s safety practices.
The details of the work were directed by M-O employees. The state’s inspectors limited their supervision to insuring that erection and assembly of the bridge were performed in accordance with contract specifications. The state inspectors lived in the same camp as the ironworkers, worked the same hours and were on the bridge at the time of Mr. Weber’s death.
Under the contract, M-O agreed that the project would be constructed under the di-
rect supervision and to the complete satisfaction of the state Department of Highways, subject to inspection at all times and in accordance with the laws of the state and the rules and regulations applicable to federal highway projects. The contract required compliance with all applicable federal, state and local rules governing safety. The contractor was required to
provide all safeguards, safety devices and protective equipment and take any other needed actions on his own responsibility, or as the State Highway Department contracting officer may determine, reasonably necessary to protect the life and health of employees on the job.
The state engineer was authorized under the contract to suspend performance of the work for failure on the part of the contractor to correct conditions unsafe for workmen. The contract also provided that M-O would save harmless the state and all its representatives from all suits, actions or claims of any character based on any injuries sustained by any person in consequence of neglect in safeguarding the work.1
The reason that no action was taken is established in the record. As a matter of practice, it had-been left to the individual project engineer on state jobs to determine how active a part he would play in exercising the powers granted him under highway contracts. In the instant case, the engineers chose to leave all responsibility for enforcing the safety requirements of the contract to the Department of Labor. This decision was based partly upon the engineers’ understanding of the unarticulated “policy” of the Central District Highway Department. Mr. Burton Doucette, an employee of the Department of Labor, Industrial Safety Division, made periodic inspections at this bridge. Mr. Doucette was. the only Department of Labor safety inspector operating in the Central District. He testified that he did not remember dis*1223covering any specific hazard requiring correction.
The trial court found that the project engineer knew or in the exercise of reasonable care would have discovered that a substantial amount of work was being done by ironworkers employed by M-0 more than 40 feet off the ground without safety belts, safety harnesses, safety lines or safety nets underneath them. The trial court further found that the project engineer in the exercise of reasonable care should have known that Weber was working on a “float” 40 feet off the ground without such safety devices and that the float upon which he was working was not equipped with a guardrail as required by sec. 314-03 of the State of Alaska Construction Safety Code.
In addition, the trial court found that the state’s project engineer was negligent in not discovering the absence of safety devices to prevent injury in the event of a fall and in failing to use reasonable care to cause M-0 to remedy these dangers. Finally, the trial court held that given the power available to the project engineer, it was more probable than not that had he directed M-0 to provide a guardrail, M-0 would have done so. Had a guardrail, safety belt, safety harness or other safety device been provided, the trial court held that it was more likely than not that Weber would not have died.
From Territorial days, the common law not inconsistent with the Constitution and statutes has been the rule of decision in Alaska.2 We have held that:
The common law is not a rigid and arbitrary code, crystallized and immutable. Rather it is flexible and adapts itself to changing conditions. After all, the common law “is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals with respect to private disputes.” What may be considered a just disposition of a dispute at one stage of history may not be the same at another stage, considering changing social, economic and other conditions of society.3
Under the facts of this case, I think that compelling reasons exist for imposing a common law duty on the state. State agencies are charged with obligations relative to occupational safety different from those imposed on other employers. The Prevention of Accident and Health Hazards Act establishes a legislative objective which lends support to the conclusion that there is a safety inspection duty on the part of state inspectors under these limited facts. AS 18.60.030(3) and (S) specify that the Department of Labor shall
(3) work in cooperation with official and unofficial organizations and instru-mentalities in the state which are interested in the promotion of safety so that possible resources can be marshalled and utilized to reduce the menace of accidental death and injury;
(5) advise with the public agencies responsible for safeguarding the people against accidents, and especially with the Department of Public Works, the Department of Public Safety, the Department of Education, Department of Natural Resources, Department of Health and Social Services, and the heads or representatives of federal departments and agencies operating in the state particularly concerned with safety programs and accident prevention; . .
I would construe these provisions to refer to public agencies such as the Highway Department, which undertake contracts and activities having a substantial impact on safety. The statute requires cooperation by such agencies in marshalling and utilizing resources to reduce the menace of accidental death and injury. Requiring highway inspection personnel assigned to con*1224struction projects to enforce safety requirements, or at least to notify contractors of known violations is an obvious means of complying with the statutory mandate.
At the time of Mr. Weber’s accident, AS 18.60.010 set forth the following findings by the Alaska Legislature:
(a) The legislature finds that preventable accidents are the leading cause of death in the state, that accidents cause nearly one-fourth of all deaths of the white race in the state and as much as 82 per cent of all deaths in certain age groups; that the proportion of accidental deaths to all deaths is three times as high in the state as in other parts of the United States in which intensive accident prevention campaigns are conducted; and that an unknown but proportionately as great a rate of nonfatal accidents is sustained in the state.
(b) For these reasons it is found and declared necessary to undertake a program to reduce the incidence of preventable accidents in the state.4
The Alaska occupational injury and death rate continues to be appallingly high.5 The state has established safety codes and regulations and is responsible for enforcement of such codes.
Furtherance of these legislative policies and recognition of the urgent need for prevention of unnecessary accidental injuries and deaths support the imposition of a common law duty on the state under the circumstances involved here. Admittedly, the decision whether or not to inspect a particular project is discretionary.6 Where, however, inspectors are assigned to a project, they cannot ignore infractions which become apparent in the course of their operational duties.7 They have a duty to take reasonable action to assure *1225correction of patent safety violations which involve serious risk of injury or death.
The rule of nonliability for negligence of independent contractors stems in part from the fact that it would be unduly burdensome for most general contractors to be charged with inspecting for safety code violations. Here, however, state inspectors were on the scene with actual or constructive knowledge of these code violations. Further, the trial court found:
. the project engineer and his staff are quite capable of investigating and substantially improving contractor work practices. While the State witnesses denied any specific safety training they all expressed familiarity with State safety regulations and construction safety manuals. I am convinced that the project engineers (supervising architects, etc.) by virtue of their education and experience would with little expenditure in time and money exceed any expertise presently held by the Labor Department’s safety inspectors.
Given their presence and expertise, it is not unduly burdensome to charge state inspectors assigned to a project with noting safety violations as well as violations of other contractual requirements.
I am not suggesting that the state re-establish its priorities or expand the scope of its inspections. Highway Department inspectors should not be required to ferret out all violations of safety regulations.8 I would simply define a duty when the state elects to place inspectors on a state contract job site and when those inspectors should have knowledge of safety code or regulation violations.
It is true that the duty is different from that of non-state employers of contractors.9 I would base this distinction on express legislative policies. If the legislature desires, it could either eliminate this duty of the state or expand it to other elements of society. I do not believe, however, that the legislature intended to permit such callous disregard of its own safety enactments as occurred in this case.
The imposition of this duty would not alter the state’s present policies to assure compliance with state contractual specifications. The contention that state officials would abandon such programs merely because of potential liability is illusory, particularly as the financial impact of such liability would usually be shifted to the contractor by means of indemnity agreements.
While the financial impact of loss might be so shifted, placing responsibility on the *1226state in such cases could only have a salutary effect. First and most important, charging state inspectors with a duty, even though the state could avoid ultimate loss, would result in prevention of accidents such as this one. Second, the state would indirectly feel the financial impact resulting from failure of compliance with its safety regulations in that contractors’ insurance rates would rise to cover this additional liability and the state’s cost would increase accordingly. Proper safety inspection would avoid such results.
There is a respectable line of authority imposing liability under the circumstances of this case, based on theories of vicarious liability.10 While I agree with the majority that vicarious liability should not apply to employers under these facts, the cases in Footnote 10 support the imposition of the more limited duty on the state suggested in this dissent.11
Under the facts of this case, the trial court specifically found that Weber’s death could have been avoided by a simple order of the Department of Highways to correct occupational safety violations. These violations were known or should have been known to the state agency. The state project inspectors are now like the three *1227monkeys who “see no evil, hear no evil, speak no evil” in that the majority opinion permits them to stand idly by without the slightest duty to notify the contractor of code violations or order corrective action, even though this would clearly prevent the loss of human life. It is not conceivable that the creation of such a small burden on the state could appreciably interfere with the other concerns of the state Department of Highways.
In light of the majority’s decision, it is not necessary to discuss issues of contributory negligence or damages raised relating to pain and suffering. I would affirm the trial court’s decision and impose liability on the state for breach of a common law duty.
. See Manson-Osberg Co. v. State, 552 P.2d 654, 657 (Alaska 1976).
. AS 01.10.010.
. Howarth v. Pfeifer, 443 P.2d 39, 44 (Alaska 1968) (footnotes omitted).
. AS 18.60.010 now indicates a similar legislative concern:
(a) The legislature finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, the people of the state in terms of loss of production, wage loss, medical expenses and disability compensation payments.
(b) For these reasons it is found and declared necessary to undertake a program to reduce the incidence of work-related accidents and health hazards in the sítate.
. Survey results from the Alaska Department of Labor reported to the United States Department of Labor in 1974 as required by the Occupational Safety and Health Act revealed:
Almost 9,800 recordable occupational injuries and illnesses occurred in Alaska in 1974 in the private sector [excluding railroads]. On an average, this means 1 out of every 8 Alaskan employees experienced an occupational injury or illness during the year.
During 1974 occupational injuries and illnesses caused an estimated loss of 44,638 workdays or the equivalent of a full years work for almost 200 employees. More than 50 percent of the lost workdays occurred in the construction and manufacturing industries.
. Under the statute authorizing suits against the state, an action may not be brought based upon thei
exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused. AS 09.50.250(1).
. Adams v. State, 555 P.2d 235, Opn. No. 1318 (Alaska 1976) (acting to ensure correction of and/or posting warnings of fire code violations discovered by the state during inspection of building) ; Kaatz v. State, 540 P.2d 1037 (Alaska 1975) (performing winter maintenance on state highways) ; State v. I'Anson, 529 P.2d 188 (Alaska 1974) (marking and striping highways over which state has direct control) ; State v. Stanley, 506 P. 2d 1284 (Alaska 1973) (caring for property over which state assumed control as bailee) ; State v. Abbott, 498 P.2d 712 (Alaska 1972) (performing winter maintenance on state highways) ; Lee v. State, 490 P.2d 1206 (Alaska 1971) (physical rescue undertaken by police officer) ; State v. Phillips, 470 P.2d 266 (Alaska 1970) (repairing dangerously defective condition of highway over which state has control) ; City of Fairbanks v. Schaible, 375 P.2d 201 (Alaska 1962) (rescue efforts actively undertaken by city fire department) .
. For example, in the situation involved in Sloan v. Atlantic Richfield Co., 541 P.2d 717 (Alaska 1975), opinion on rehearing, 546 P.2d 568 (Alaska 1976), a moveable scaffold collapsed injuring an employee. There the state project engineers would not be chargeable with discovering that the scaffold was improperly constructed since, in the performance of their inspection duties, that fact would not normally come to their attention. Thus, in the absence of proof that the inspectors had actual knowledge of the code violations pertaining to the scaffold, there should he no duty imposed on the state.
. The recently decided case of Morris v. City of Soldotna, 553 P.2d 474, Opn. No. 1296 (Alaska 1976), is distinguishable from the situation now before this court. In that ease, we denied liability of the City which had entered into a contract with the employer of an employee who was killed while painting in an enclosed area. Our holding there was limited to finding that Restatement (Seeond) of Torts (1965) §§ 416 and 427 did not apply to employees of independent contractors. Within the context of the common law duty I would impose on the state here, it should he noted, that the City of Soldotna is not subject to a state legislative provision as is the Department of Highways which, under AS 18.-60.030(3), is to “cooperate with” agencies such as the Department of Labor in areas of occupational safety. Here I would merely eneourage the state to enforce, under very limited conditions, its own legislative concern and the state’s own regulations concerning occupational safety. This situation was not presented to us in Morris v. City of Soldotna, supra.
. The jurisdictions of California, District of Columbia, Iowa, Michigan, Missouri, New Mexico, South Dakota and Tennessee have all held that a general contractor may be held liable to employees injured as a result of the negligence of an independent contractor where the work performed by the employee is inherently dangerous or where the general contractor’s duty is otherwise nondelegable. Lindler v. District of Columbia, 164 U.S.App. D.C. 35, 502 F.2d 495, 498-500 (1974) ; Hagberg v. City of Sioux Falls, 281 F.Supp. 460, 466-68 (D.S.D.1968) ; Pierce v. United States, 142 F.Supp. 721, 728-29 (E.D.Tenn.1955) ; Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508, 514 (1968) ; Woolen v. Aerojet General Corp., 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708, 711 (1962) ; Ferrel v. Safway Steel Scaffolds, 57 Cal.2d 651, 21 Cal.Rptr. 575, 371 P.2d 311, 314 (1962) ; Giarratano v. Weitz Co., 259 Iowa 1292, 147 N.W.2d 824, 833-34 (1967) ; Vannoy v. City of Warren, 15 Mich.App. 158, 166 N.W.2d 486, 489 (1968), affirmed, 15 Mich.App. 158, 194 N.W.2d 304 (1972) ; Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617, 624-27 (1928) ; Montanez v. Cass, 89 N.M. 32, 546 P.2d 1189, 1194-95 (1975), cert. granted (1976) ; International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854, 865-68 (1948).
. Another recognized line of authority arguably supporting imposition of liability is found in cases placing a duty to inspect upon insurers who retain a right to inspect the insured premises and negligently fail to properly perform such inspection services. See Mays v. Liberty Mutual Ins. Co., 323 F.2d 174 (3rd Cir. 1963) ; Mager v. United Hospitals of Newark, 88 N.J.Super. 421, 212 A. 2d 664 (1965) ; Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769 (1964) ; Fabricius v. Montgomery Elevator Co., 254 Iowa 1319, 121 N.W.2d 361 (1963) ; Smith v. American Employers’ Ins. Co., 102 N.H. 530, 163 A.2d 564 (1960). Contra, Mustapha v. Liberty Mutual Ins. Co., 387 F.2d 631 (1st Cir. 1967) ; Williams v. United States Fidelity & Guaranty Co., 358 F.2d 799 (4th Cir. 1966) ; Bartolotta v. United States, 276 F.Supp. 66, 71-74 (D.Conn.1967) ; Horne v. Security Mutual Casualty Co., 265 F.Supp. 379 (E.D.Ark.1967) ; Donohue v. Md. Casualty Co., 248 F.Supp. 588 (D.Md.1965) ; Kotarski v. Aetna Casualty & Surety Co., 244 F.Supp. 547, 555-56, affirmed, 372 F.2d 95 (6th Cir. 1967) ; which hold that the insurer is to be considered the “employer” for purposes of exclusive remedy under the Wormen’s Compensation Act. See also Stacy v. Aetna Casualty & Surety Co., 484 F.2d 289 (5th Cir. 1973) ; Evans v. Liberty Mutual Ins. Co., 398 F.2d 665, 667 (3rd Cir. 1968) ; Viducich v. Greater New York Mutual Ins. Co., 80 N.J.Super. 15, 192 A.2d 596 (1963) ; DeJesus v. Liberty Mutual Ins. Co., 423 Pa. 198, 223 A.2d 849 (1966). These cases hold that while the insurer may be liable for failure to inspect, liability is premised upon a showing by the plaintiff that
the [insured] in reliance on what the insurer undertakes to do lessens or omits its own safety measures and the insurer does not perform with due care what it has undertaken to do . . . .
Stacy v. Aetna Casualty & Surety Co., supra, 484 F.2d at 295. While the above cases are cited to express a principle relevant to the issues of this case, I do not mean to imply that I agree or disagree with the specific holdings of such cases.