concurring:
(Filed Dec. 14, 1993)
I concur with the majority’s decision regarding the liability of Sears. I am alarmed, *164however, both at the cursory analysis made by the majority of the issues, and at the breadth of syllabus point 3. These issues are sufficiently consequential (not only to the parties, but to the whole area of law involved) that they deserve much fuller examination and the enunciation of a much narrower rule than the one stated in the syllabus point.
The majority fads to even examine the Appellee’s primary arguments. In support of his argument regarding Sears’ liability, the Appellee relies upon language in the contract which is not addressed in any way by the majority. Specifically, the contract provided that Sears had the right to stop work on the project if the contractor failed to correct defective work or failed to supply or install materials or equipment in accordance with the contract.1 Thus, the Appellee contended that Sears had an obligation to stop work once it discovered that installation of materials or equipment was not being performed pursuant to contractual agreements relating to safety.2
The Appellee maintains that Sears had a representative on site and had an obligation to exercise its right under the contract to stop the installation of materials in a dangerous manner. Further, the Appellee argues that Sears maintained sufficient control or supervision over the work performed to have prevented the independent contractor from violating safety regulations and conducting its work in an unsafe manner. Its failure to do so, the Appellee contends, .constituted negligence.
The Appellee’s argument is based in part on our holding in Pasquale v. Ohio Power Co., 187 W.Va. 292, 418 S.E.2d 738 (1992), wherein we set forth three scenarios under which an employer owed a duty to employees of an independent contractor:
An employer owes a duty to provide a reasonably safe place to work to employees of independent contractors who are on the premises. This duty includes the duty to warn of latent defects existing before the work is started that are known to the employer, but are not readily observable by the employee. The employer of an independent contractor will also be liable to such contractor’s employee if he retains some control or supervision over the work which negligently injures the employee. Finally, the employer is hable for an injury to an employee of an independent contractor caused by the negligence of the employer. (emphasis added)
Pasquale, 187 W.Va. at 305, 418 S.E.2d at 751. Although the majority discusses the third concept set forth above, it is the second concept of retaining control or supervision upon which the Appellee primarily relies.
In Pasquale, we remanded the matter for a jury determination regarding a power company’s negligence. We found evidence that the power company had been negligent in failing to provide a safe workplace for work on short-circuited cable, that it had placed red tags too far from the worksite, that it had failed to point out the actual de-ener-gized cable, and that it had refused to allow the contractor’s foreman to take prints of the cable layout room. We found this evidence sufficient to justify jury consideration of the power company’s negligence.
*165Similarly, in Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1970), we found support for a jury determination that Georgia-Pacific, as the employer, exercised sufficient control over the independent contractor to justify holding Georgia-Pacific liable for injury to an employee unloading logs. Georgia-Pacific had purchased the crane involved in the accident, had furnished it for the use of the independent contractor, had brought it to the job site, and was responsible for its care, repairs, inspections, etc. We found that factual scenario sufficient to support a jury’s conclusion regarding Georgia-Pacific’s liability. Specifically, we stated in syllabus point 1:
One who would defend against tort liability by contending that the injuries were inflicted by an independent contractor has the burden of establishing that he neither controlled nor had the right to control the work, and if there is a conflict in the evidence and there is sufficient evidence to support a finding of the jury, the determination of whether an independent contractor relationship existed is a question for jury determination.
In the present case, the contractual provision relating to Sears’ right to stop the work seems on its face to exist in order to protect Sears against failure of the independent contractor to correct defective work or against supply or installation of materials or equipment not in accordance with the contract, not in order to protect employees of an independent contractor. Furthermore, the right to stop the work does not in and of itself impose an obligation to stop the work. Here the scaffolding was not equipment which was being supplied or installed, but was a mechanism being used by the independent contractor to facilitate the performance of work being done under the contract.
The majority’s formulation of an “overly-expansive” new syllabus point causes great concern. Its present wording is susceptible of misinterpretation and should be more narrowly drawn. The syllabus point provides that the reasonably safe workplace theory may not be used against the owner of a place of employment when that owner exercises no control over the equipment provided by the contractor. That construction not only fails to address the Appellee’s argument as to the employer’s right to control, but also leaves open the question of whether such lack of control is by choice, imposed by contract, or otherwise. A more precise explanation would state that the theory may not be used against the owner when the owner has no obligation to exercise control over the equipment.
While I concur with the result reached by the majority, this case’s similarity to both Pasquale and Sanders give cause to ponder the issues with more scrutiny than utilized by the. majority. Pasquale and Sanders presented us with examples of much more direct relationship between the employer and the instrumentality of injury. The distinguishing characteristics of the present case, while sufficient to justify the majority’s final determination, are much less obvious than the majority intimates. We must use caution, when deciding close cases of this nature, to refrain from broad, sweeping statements regarding the type of liability attempted to be imposed in this case.
. The contract provided in part: 5.2(a) If the contractor fails to correct defective Work or fails to supply or install materials or equipment in accordance with the contract, the Owner may order the contractor to stop the Work, or any portion or part thereof, until the cause for such order has been eliminated, (b) Any order to stop any part or portion of the Work which is given to the contractor shall bind the contractor...., such stop order becoming effective upon issuance to the contractor.
. The contract provided in part: 8.2 Safety of Persons and Property (a) The contractor shall take all reasonable precautions for the safety of and shall provide all reasonable protection to prevent damage, injury or loss to: (1) All persons acting directly on the Site through or under the contractor and all other persons who may be affected by the work; ... (b) The contractor shall comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss. He shall erect and maintain and otherwise implement, as required by existing conditions and the progress of the Work, all safeguards for safety and protection ... (e) The contractor shall designate a responsible member of his organization at the Site whose duty shall be the prevention of accidents....