The Iowa Supreme Court reversed a $20.5 million Polk County jury verdict against homebuilder D.R. Horton for negligence arising from a subcontractor’s employee being briefly buried under several feet of dirt while working in a trench. The Court held that under Iowa law general contractors ordinarily do not owe a duty of care to the employee of a subcontractor and thus are not liable for a subcontractor’s negligence.

“Whether a duty exists is a threshold question of law in a negligence case; the defendant cannot be held liable without it,” Justice Dana Oxley wrote for the Court. “Because the district court erred in concluding that D.R. Horton owed [the subcontractor’s employee] a duty of care and in submitting the claim to a jury, we hold that D.R. Horton is entitled to judgment notwithstanding the verdict.”

The decision was joined by all participating members of the Court. Chief Justice Susan Christensen did not participate in consideration or decision of the case.

Plaintiff Tim Kono was an employee of Royal Plumbing—a company that was subcontracted by Defendant D.R. Horton for a residential construction project. Kono was installing water and sewer lines on the project when a wall of the trench he was working in collapsed, covering him with what the Court described as an “SUV-sized mound of dirt” for about two minutes while coworkers worked to extricate him. The trench had been excavated without proper shoring or a trench box to prevent a cave-in. Instead, “benching” that cut stair steps into the side of the trench was used. But in this case, OSHA concluded, the trench was improperly benched and the soil was unstable.

After Kono was unburied, he was taken to a hospital for treatment of physical injuries that required surgery. He also suffered emotional injuries from the incident, which were “severe and long-lasting,” Justice Oxley wrote. Kono sued for physical and emotional damages. He received workers’ compensation benefits and settled negligence claims against three of his coworkers, leaving D.R. Horton as the sole defendant. The Polk County jury awarded more than $20.5 million in compensatory and punitive damages. The district court denied D.R. Horton’s motion for judgment notwithstanding the verdict.

In reversing the trial court, Justice Oxley wrote that the Iowa Supreme Court has “long recognized that a general contractor typically does not owe a duty of care to the employee of a subcontractor,” citing its decisions dating back to 1980.

Kono argues that exceptions to that precedent apply in cases when a general contractor retains control or where the work at issue involves a peculiar risk not mitigated by ordinary caution. Neither exception applies in this case, the Court said.

In making the case that D.R. Horton retained control of the construction project, Kono cited D.R. Horton’s corporate safety manual, but the Court rejected that argument because the manual was never made part of the plumbing subcontractor’s contract with D.R. Horton. Nor did the Court agree with Kono that an exception applies because D.R. Horton retained “complete authority” under its contract with the plumbing contractor, saying that retention of its general rights to “direct all work” and “be awarded all final decisions” under the contract is insufficient to impose a duty of care.

Finally, the Court rejected Kono’s argument that D.R. Horton owed a duty of care under the “peculiar risk” exception. Kono argued that trenching work creates a peculiar risk of cave-ins. The Court disagreed, finding this issue is controlled by its 1996 decision in Robinson v. Poured Walls of Iowa Inc., which held that residential excavation work does not constitute a peculiar risk as a matter of law.

“The baseline rule that a general contractor owes no duty of care to the employees of an independent contractor stands under the facts of this case,” Justice Oxley wrote. “D.R. Horton did not retain control—neither by contract nor through its conduct—over the operative detail of the work that caused Kono’s injuries. And trenching work for a residential construction project, as a matter of law, does not create the type of peculiar risk that imposes a duty on the general contractor.”

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