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Show PAGE THE FOUR In The Supreme Court Of The State Of Utah DAILY RECORD Robert L. Velasquez, by and through his Guardian Ad Litem, Corinne F. Muniz, Plaintiff and Appellant, v. v- - No. 11808 Colorado Fuel fit Iron, a corporation, for whom United States Steel Corporation has been substituted, and Employers Mutuals of Wasau, a corporation. Defendants and Respondents. FILED May 7, 1970 L. M. Cummings, Clerk Plaintiffs, the heirs at law of Albert W. Stevens, initiated this wrongful death action against United States Steel Corporation. Defendant filed a motion to dismiss on the grounds that the plaintiffs failed to state a claim upon vhich U. C.A. relief could be granted and that under the provisions of Section Workmen's under the was exclusive 1953, plaintiffs' Compensation Act. remedy and The trial court dismissed the complaint, plaintiffs appeal. 35-1-- 60, Albert W. Stevens was an employee of Utah Construction and Mining Company; he worked as a truck driver hauling ore. On the day of the accident, August 19, 1964, Stevens drove a truck loaded with ore from a mining claim owned by defendant; however, the ore had been mined by his employer, Utah, under a contractual arrangement between Utah and defendant. Stevens drove his truck to property owned by Utah; he backed the truck onto the crest of ore dump No. 8. During the dumping process, his truck catapulted backwards down the slope of the dump; he sustained injuries from which he died two days later. Compensation benefits for his death were paid in accordance with Workmen's Compensation Act. Plaintiffs are confronted with a dilemma. If Utah were an agent subject to the supervision and control of defendant, defendant would be an employer U.C.A. 1953, the U.C.A. 1953) and under Section (Section compensation awarded under the Workmen's Compensation Act would be the exclusive remedy. If Utah were an independent contractor, the dangerous condition which allegedly caused Stevens' death would not be subject to the supervision and control of defendant. 35-1-- 60, U.C.A. 1953, which provides that when Plaintiffs cite Section which is payable under Title 35, shall have been caused death, for compensation by the wrongful act or neglect of another person not in the same employment, 62, the heirs or representatives may also have an action for damages against such third person. Plaintiffs assert that defendant was such a third person, that at all times defendant retained the ownership of the ore in the stockpile, that decedent was an invitee thereon, that the duty owed by the possessor of land to a business visitor is to inspect and maintain his premises in a reasonably safe condition or to warn the visitor of any dangerous condi2 tions existing thereon, and that defendant violated this duty. The assertion of mere legal title to the ore in the defendant was an insufficient basis upon which to predicate the duty plaintiffs assert was owed to the decedent. The duty claimed is owed by the possessor of land. The possessor of land is a person who is in occupation of the land with intent to control it. Plaintiffs contend that Utah was an independent contractor, which by definition excludes control or supervision by defendant, and that the accident occurred on land occupied by Utah. The pleadings and argument of plaintiffs specifically negate the requisite factual foundation essential to establish their claim. The judgment of the trial court is affirmed. Costs are awarded to defendant. WE CONCUR: 63-30-- placement Volume 7A, R. C ruckett, Chief Justice Immunity from suit of all governmental entities is waived for any injury caused hy a defective, unsafe, or dangerous condition of any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, viaduct or other structure located thereon. Plaintiff contends that there was a defect in the highway in that the railroad crossing did not have proper warning devices to warn motorists of said crossing. Even if we assume that the failure to have the most improved warning signs at a railroad crossing is a defect in the highway, there is another section of the statute which has a bearing upon the question of recovery U.C.A. 1953, Replaceagainst the respondent herein. Section ment Volume 7A, insofar as material reads as follows: Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of his employment except if the injury: 63-30-- out of the exercise or performance or the failure to exercise or perform a discretionary function, whether or (1) arises not the discretion is abused, or (4) arises out of a failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property, or v The appellant claims that the respondent had a duty to protect the public by requiring proper and adequate safety devices at all railroad crossings and that it was negligent in that (a) it did not require the railroad company to install adequate protective devices and (b) it did not establish a program to discover dilapidated signs in meeting standards set by the respondent and to replace such signs. By statute (Sec. U.C.A. 1953) the respondent has "power, by general or special orders, rules or regulations, or otherwise, to require every public utility to construct, maintain and operate its . . . tracks . . . in such manner as to promote and safeguard the health and safety of its emto prescribe, ployees, passengers, customers and the public, and . . . the installation, use, maintenance and of operation appropriate Bafety or other devices at grade crossings (Emphasis added.) 54-4-1- 4, ... ... ..." The fact that the statute gives the respondent power to require the Union Pacific Railroad Company to construct and maintain appropriate safety devices shows a legislative intent to confer a discretion on the respondent. One type of device which might be satisfactory at the crossing of a seldom used contry road might be entirely inadequate at the crossing of a busy highway. The traffic along the highway and the number of trains which daily pass the crossing would be factors in determining the type of device to be used. The statute gives the respondent the power to require a different safety device at the crossing in question, but that does not mean that the plaintiff should recover simply because a better warning signal could or should have been installed. The Public Service Commission has the discretion to require the installation of such signals as in its judgment the health or safety. of employees, passengers, customers or the public may require. Therefore, the respondent as an arm of the State of Utah is excepted from the waiver of immunity from suit, and the trial judge was correct in ruling as he did. WE CONCUR: L. Tuckett, Justice J. F. Henri Hcnri&d, Justice A. Jr., Justice R. I.. Tuckctt, Justice Blackham v. Snelgruve, 3 Utah 2d 157, 160, 280 P. 2d 45 (1955). Rogalski v. Phillips Petroleum Company, 3 Utah 2d 203, 208, 282 P. 2d (1955). 3. Restatement of Torts, 2d, Allan Crockett, Chief Justice E. R. Callistcr, li. Ellctt, Justice 3 328E (a). 8, reads: The judgment appealed from is affirmed. J. Allan 2. 304 L. M. Cummings, Clerk We direct our attention to the Governmental Immunity Act under which U.C.A. 1953, Replaintiff seeks to recover from the State. Section Plaintiffs alleged that at all times Utah was the agent of defendant for the purpose of furnishing iron ore to the defendant, that Utah, in fulfilling the requirements for ore of defendant, hauled away the east end of stockpile No. 8, leaving it in a precipitous condition, that defendant knew or by the exercise of proper inspection should have known of this condition and installed warning devices, that defendant had a duty to inspect and make safe the places where men worked, and that this duty extended to employees of contractors as well as to defendant's employees. Plaintiffs alleged that defendant's failure to perform the duty which it owed to decedent constituted gross negligence. 1. May 7, 1970 ELLETT. Justice; A complaint docs not fail to state a claim unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim. 42, FILED Union Pacific Railroad Company, a Utah corporation, State of Utah, Public Service Commission, and Heinz Reinhold, Defendants and Respondents. The appellant was a passenger in a pick-u- p truck which was involved in a crossing collision with a Union Pacific train. He sued the respondent. State of Utah Public Service Commission, as well as the railroad company. A summary judgment was entered in favor of the State of Utah, and the plaintiff appealed. CALLISTER, Justic e : 35-1-- 13, 1970 No. 11883 Dora H. Stevens, Connie Joy Leigh, Jack Holt Stevens and A1 ice Dayle Esplin, Plaintiffs and Appellants, 35-1-- WEDNESDAY, MAY F. Henri Henriod, Justice I No costs are awarded. |