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Employment -- Safe Work Environment
Tort – Safe Work Environment

Excerpts from Johansen v. Anderson, 555 N.W.2d 588 (N.D. 1996)

In February 1992, Lane Anderson purchased a drill fill and bin sweep from the Farmers Union Elevator in New Town. The drill fill is used to transfer seed from a grain truck box to a drill or planter. The bin sweep is used for directing grain from a grain bin toward an auger which then carries the grain up into a truck box. Both of these pieces of equipment can be operated by attaching hoses to a hydraulic hoist system on a grain truck. Jene Hasby, an employee with the elevator, modified Anderson's grain truck hydraulic system to operate the bin sweep and drill fill. He installed a diverter valve which is pushed in or pulled out to operate either the truck box hoist or one of these other pieces of equipment, which are attached by hoses to hydraulic couplings on the truck.

Dennis Johansen was killed while using the bin sweep as an employee on Anderson's farm. On the morning of the accident, Dennis Johansen was using the bin sweep to auger grain from a bin into Anderson's truck. Just as he was exiting the bin, the truck box unexpectedly rose, pushing the grain elevator into the side of the bin and crushing Johansen between the auger and the bin. He later died from the injuries suffered in this accident.

Shirley Johansen sued Anderson for the wrongful death of her husband, claiming Anderson's failure to provide a safe work environment and equipment was the proximate cause of the accident. Her complaint alleged "the hydraulic system malfunctioned as the result of the negligence of [Anderson] in failing to properly install, maintain, and instruct, Dennis Johansen on the use of, the hydraulic system." Anderson's motion for summary judgment dismissal was granted by the district court, and Shirley Johansen appealed.

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Shirley Johansen claims Anderson is liable for failing to provide a safe work enviroment and equipment for his employee, Dennis Johansen, in three respects: (1) Anderson negligently hired Jene Hasby to modify the grain truck hydraulic system; (2) Anderson negligently failed to inspect the modified hydraulic system; and (3) Anderson is liable for Hasby's negligent modification of the hydraulic system.

It is well settled that an employer owes an employee a duty to excerise ordinary care to furnish the employee with a reasonably safe workplace and tools. Maurer v. Wagner, 509 N.W.2d 258 (N.D. 1993). We explained the employer's duty to provide a safe workplace in Titus v. Titus, 154 N.W.2d 391, 393, Syllabus 7 (N.D. 1967):

"The employer is bound to observe all the care which prudence and the exigency of the situation require, with respect to furnishing instrumentalities adequately safe for the use of the employee, and, when such instrumentalities are furnished, the employer is required, further, to exercise due care in keeping the same safe and serviceable; and, with this end in view, the employer is bound to make seasonable inspection of the condition of the instrumentalities furnished for the use of the employee."

As explained in Volume 3, Modern Tort Law 43.22 (Rev. Ed. 1990), agricultural employers have the same duty to provide employees with a safe workplace as other employers:

"The rancher or farmer, like any other employer, is under a duty to exercise ordinary care for the safety of employees. This has been held to include the duty to provide a reasonably safe place to work, and reasonably safe tools, implements and appliances with which to perform it.

* * * * *

"These duties are nondelegable, and the agricultural employer cannot escape liability by contracting with another person for their performance. But the duty is not absolute, and with rare exception is limited to exercising ordinary care."

NEGLIGENT HIRING

Shirley Johansen asserts Anderson was negligent in hiring Jene Hasby to modify the truck's hydraulic system, because Hasby was not in the business of modifying hydraulic systems and had only modified one other truck hydraulic system in the past seven or eight years. According to the Restatement, Second, Torts 411 (1965) an employer can be liable for failing to use reasonable care to hire a contractor:

" 411. Negligence in Selection of Contractor

"An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
"(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
"(b) to perform any duty which the employer owes to third persons."

Thus, Anderson had a duty to act reasonably in hiring someone to modify the hydraulic system.

Hasby testified by deposition that he had previously worked as a mechanic with Boeing and was currently an assistant manager at the elevator, where, as part of his duties, he would repair equipment such as bearings and motors. Anderson bought the drill fill and bin sweep from the elevator and Hasby agreed to modify the hydraulic system on Anderson's truck so these items could be used with it. Shirley Johansen has not presented any evidence, by affidavit, deposition, or otherwise, showing Anderson knew Hasby had installed only one unit in the past seven or eight years or that he had any reason to believe Hasby was not qualified to install these farm items which the elevator had sold to him.

… Shirley Johansen has failed to produce evidence from which a reasonable person could conclude Anderson was negligent in allowing Hasby to modify the hydraulic system …

NEGLIGENT FAILURE TO INSPECT

Included within the duty to provide safe tools for employees, an employer is required to make seasonable inspection of the condition of the tools he furnishes for the use of his employees … Shirley Johansen claims Anderson was negligent because the evidence shows he did not inspect the modified hydraulic system. However, there is no evidence in the record that an inspection of the system by Anderson would have revealed any defect or problem with it. The record shows both Anderson and Dennis Johansen used the modified hydraulic system with the drill fill during the Spring of 1992, without incident. There is no evidence of any potential problem with the system prior to the accident. After the accident Shirley Johansen secured an expert in hydraulic systems, who concluded the modified hydraulic system should have "incorporated another directional valve to accommodate two hydraulic components to prevent both the hoist and the sweep auger from operating at the same time." However, there is no evidence that an inspection of the system by Anderson, who was not alleged to have any expertise or knowledge regarding hydraulic systems, would have revealed this alleged defect in the system or any potential hazard in using the system with the bin sweep.

Liability cannot be predicated on negligent failure to inspect where there is no showing that a reasonable inspection would have revealed a problem prior to a malfunction … We conclude Shirley Johansen has failed to raise a genuine issue of material fact whether Anderson's failure to inspect the modified hydraulic system was a proximate cause of the accident.

NEGLIGENT MODIFICATION

Shirley Johansen asserts Hasby negligently modified the hydraulic system and Anderson should be held liable for the damages caused by that negligence. In its memorandum opinion, the trial court recognized that Anderson had "a non-delegable duty to provide Mr. Johansen with safe equipment," but the court concluded Anderson could not be held to have breached that duty unless he "knew, or reasonably should have known, that the hydraulic system on [his] farm truck, as modified, was potentially unsafe to operate." This is an incorrect application of the law regarding nondelegable duty.

We have long recognized that an employer's duty to provide his employees with a safe workplace and safe equipment is a nondelegable duty, and that an employer who entrusts the safety of his workplace and equipment to others is vicariously liable for their negligence:

"[T]he acts which the master, as such, is bound to perform for the safety and protection of his employees, cannot be intrusted to another, so as to exonerate the former from liability to a servant who is injured by the omission to perform the act or duty . . . The courts all agree that it is a part of the contract of hire on the part of the master that he will furnish for the use of his servants proper, suitable, safe, and sufficient machinery and appliances, and keep them in a safe and suitable condition for such use. This is an imperative duty, a failure to perform which renders him liable as for his own neglect."

Herbert v. Northern Pacific R. Co., … Consequently, Anderson's duty to provide safe equipment for his employee, Dennis Johansen, was nondelegable, and he could not escape liability if, in having someone else modify that equipment, it was done negligently so as to render it unsafe …

Because Anderson's duty to provide Dennis Johansen with safe equipment was a nondelegable duty, he cannot escape liability if Hasby's modification of the hydraulic system was performed negligently and thereby caused injury to Dennis Johansen. Anderson's liability is not contingent on his knowledge that Hasby negligently modified the hydraulic system, making it potentially unsafe to operate.

Shirley Johansen submitted an affidavit of Arthur F. Sholl, a registered professional engineer, who concluded:

"[T]he hydraulic system on the truck and sweep auger was deficient in that it should have incorporated another directional valve to accommodate two hydraulic components to prevent both the hoist and sweep auger from operating at the same time. . . . As a result of the failure of the hydraulic system to prevent both the hoist and the sweep auger from operating at the same time, the truck hoist raised up . . . resulting in [Johansen's] death."

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There is a triable issue of fact if different inferences can be drawn from the evidentiary facts permitting the factfinder to conclude the defendant's conduct was not reasonable … Shirley Johansen submitted expert testimony, by affidavit, that the modified hydraulic system was deficient because it did not have two directional valves. A factfinder could draw an inference from this evidence that it was not reasonable to modify the hydraulic system using only one directional valve. The question of whether Hasby did or did not act reasonably is for a jury to decide. We conclude this evidence raises a genuine issue whether the system was negligently modified and whether that negligence was a proximate cause of Dennis Johansen's injuries and resulting death.

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