dissenting. The appellant relies exclusively upon Oaklawn Jockey Club v. Pickens-Bond Construction Co., 251 Ark. 1100, 477 S.W.2d 477 (1972), for reversal. I believe Oaklawn is clearly distinguishable on its facts and on that basis I respectfully dissent.
The relevant facts of Oaklawn are: Theo Tyler, an employee of Pickens-Bond Construction Company, was injured on the premises of Oaklawn Jockey Club during the construction of a new building. Tyler was injured when the handle of a bull float contacted AP &L’s electrical power lines. He brought suit against AP&L and Oaklawn Jockey Club alleging that Oaklawn Jockey Club failed to provide a safe place to work. Oaklawn then filed a cross-complaint against Pickens-Bond. The cross-complaint was based upon Oaklawn’s contract with Pickens-Bond, the contractor on the job. Oaklawn’s pleadings stated:
1. Oaklawn, as the owner, contracted with Pickens-Bond as the contractor, to build a new building. . .The construction was entirely under the supervision and control of Pickens-Bond.
2. There was implied in the contract between the owner and the contractor an obligation on the part of the contractor to perform the work in a safe manner, to provide safe working conditions for its employees. . . .
The trial court dismissed Oaklawn’s cross-complaint against Pickens-Bond for implied indemnity in that Pickens-Bonds’ liability was limited by the workers compensation law. On appeal, we reversed the trial court, finding that Oaklawn could maintain its cross-complaint based upon implied indemnity.
Although there was no express contract of indemnity in Oaklawn, we recognized an exception to the exclusivity of the workers’ compensation remedy — implied indemnity — arising from the construction contract. Oaklawn Jockey Club had contracted with Pickens-Bond to construct a new building. The contract provided that the construction was entirely under the control and supervision of Pickens-Bond, the contractor.
Here, there was no contract between the appellant and Paragould Light & Water Commission. Yet in Morgan Construction Co. v. Larkin, 254 Ark. 838, 496 S.W.2d 431 (1973), we quoted Larson indicating that a distinct duty as to indemnity may arise from a contract or from a special relationship capable of carrying with it an implied obligation to indemnify. The appellant alleges that a special relationship existed by virtue of Ark. Code Ann. § 14-235-305 (1987), “Tapping of Sewers” statute. This statute provides:
(a) The city council shall regulate, by ordinance, the terms, time and manner, and the compensation which shall be paid by the private parties. . .with which the parties may tap the sewers of the municipality. [My emphasis.]
In addition to this statute, Paragould Light & Water Commission maintained a policy of allowing only their employees to make the actual tap into the city sewer line. Therefore, the appellant argues that this statute and policy provision provide the basis for implied indemnity. But here the applicable statute affords no basis for an independent duty. The statute indicates that the city council shall regulate the tapping into city sewers by ordinance, the terms, and the time and manner of the tapping. The statute does not state that the city councils regulate, control or supervise the actual tapping of the sewers. Rather, the city council exercises its role in supervision by passing appropriate ordinances. The role of the city council is not comparable to the contractor, PickensBond, in Oaklawn, which expressly contracted to supervise the on-site construction of the new building. The degree of supervision differs substantially. Therefore, I submit the “special relationship” element is lacking.
. Even if a “special relationship” existed between the appellant and the appellee sufficient to sustain an implied duty of indemnity, one must then examine the action of the appellee, the employer from whom indemnity is sought. In Oaklawn, the Jockey Club, owner of the premises on which the accident occurred, sought indemnity from the contractor, Pickens-Bond. Oaklawn Jockey Club had no involvement in the occurrence by which Theo Tyler was injured. Whereas in this case the party seeking indemnity, appellant Paul Smith, dug the trench which subsequently collapsed and killed Thomas Faulkner. Thus, unlike the facts of Oaklawn where Oaklawn Jockey Club was merely the passive party owner, the appellant actively participated, and negligently constructed the trench which caused the loss.
I believe the absence of a contract and, arguably, the absence of a special relationship, coupled with the appellant’s active involvement in the accident distinguish the facts of this case from Oaklawn.