dissenting. The majority opinion holds summary judgment was improper because a genuine issue of material fact remained concerning the duty of Arkla to the employees of its independent contractor, Daniel. Appellant alleges Arkla had a duty under the contract between Arkla and Daniel to ensure Daniel complied with the safety regulations provided for in the contract. Appellant contends that had Arkla forced Daniel to comply with the safety regulations provided for in the contract Elkins would not have been injured.
The majority has adopted Restatement (Second) of Torts § 414 (1965) and held a fact question exists whether Arkla assumed the duty to ensure Daniel complied with safety regulations contained in the contract. In doing so, the majority has ignored the weight of authority from jurisdictions which have specifically considered this issue in relation to section 414. Other jurisdictions which have addressed this issue hold that in order for the employer or general contractor to be held liable for a subcontractor’s or independent contractor’s failure to comply with safety regulations contained in the contract, the employer must have assumed the responsibility for initiating, maintaining, and supervising safety precautions. Micheletto v. State, 798 P.2d 989 (Mont. 1990); Werdehausen v. Union Elec. Co., 801 S.W.2d 358 (Mo. App. 1990) (and cases cited therein). We have held that where a contract obligates a subcontractor to provide safety measures for his employees, the prime contractor will not be held responsible to assure compliance by the subcontractor by actual and physical inspection and direction if such is not provided in the contract. Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969).
The contract at issue obligated Daniel to comply with safety regulations. It did not provide for Arkla to ensure compliance by Daniel with the safety provisions by actual and physical inspection and direction nor did Arkla initiate, maintain or supervise safety procedures. Therefore, summary judgment was proper both under our previous decisions and pursuant to section 414 of the Restatement.
Hays, J., joins in this dissent.