Alabama Power Co. v. Beam

• Decision Date: 26 April 1985
• Citation: 472 So.2d 619
• Parties: ALABAMA POWER COMPANY v. Debra W. BEAM, as Administratrix of the Estate of Gary M. Beam, Deceased. 81-1011.
• Court: Alabama Supreme Court

Page 619

472 So.2d 619

ALABAMA POWER COMPANY v. Debra W. BEAM, as Administratrix of the Estate of Gary M. Beam, Deceased.

81-1011.

Supreme Court of Alabama.

April 26, 1985.

As Corrected on Denial of Rehearing

May 31, 1985.

S. Allen Baker, Jr. and James A. Bradford of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham and Robert C. Dillon of Merrill, Porch, Doster & Dillon, Anniston, for appellant.

Ernest C. Hornsby and Steven F. Schmitt, Tallassee, and John S. Casey, Heflin, for appellee.

ALMON, Justice.

This appeal involves questions of the liability of Alabama Power Company for the death of plaintiff's decedent, Gary M. Beam. Beam, while working on the construction of Alabama Power's R.L. Harris Dam, died when a concrete pouring form pivoted and caused him to fall some 80 feet. The jury awarded $250,000 to Debra Beam, Gary's widow, as administratrix of his estate.

Alabama Power contracted with the Manhattan-Walton Joint Venture (M-W) for certain aspects of the construction of the Harris dam. Gary was a carpenter employed by M-W to perform work on the dam. His foreman was Charles Surrett, an M-W employee, who took his orders from Omer Bowen, M-W's general carpenter foreman. Gary had been working at the dam for seven months at the time of his accident. He was an apprentice carpenter, while the other members of his crew were journeyman carpenters.

The structure of the dam included vertical piers which were formed by successive pourings of concrete into forms which were put into place by carpenter crews such as that in which Gary worked. The forms consisted of panels which were ten feet long and five and a half feet tall. Two vertical steel beams called strongbacks ran down the outside of each panel, extending downward about four feet. The lower portions of the strongbacks were bolted to the pier at the previous pour level. After the concrete dried at each pour level, the carpenter crews raised the panels to form the mold for the next pour level.

The panels were secured to the piers by two anchor bolts, one in each strongback, fastening into wickets placed in the concrete during each pouring. Five seam bolts held the panels together. A scaffolding platform was attached to the strongbacks, with the walk boards a foot or so below the anchor bolts. The hand rail of the scaffold was three and a half feet above the walk board. The top of the panel was about three feet above this hand rail. For some pourings a two-foot wooden extension was added to the top of the panels. Gary was sitting atop such an extension when the panel pivoted on the one anchor bolt securing it. See the appendix to this opinion depicting the panels as they existed just prior to Gary's fall.

The accident occurred on December 7, 1978. On November 16, pour level fourteen on Pier # 2 had been poured with concrete. Two or three days later, the workmen raised the panels on the east and west sides of the pier to pour level fifteen. The crane which raised the panels would not reach the panel on the south (downstream) end of the pier, however, so that panel was left at pour level fourteen.

The work which Gary and his crew were to do on December 7 consisted of preparing Panel # 2, the middle panel on the east and west sides of Pier # 2, for removal so that a special panel could be inserted in its place. They had done the same task the previous day on Pier # 3, but there was an important difference: the south end panel on Pier # 3 had been raised at the same time as the side panels. This difference was important because the crews customarily left the southernmost anchor bolt out of the side panels on each side until the end panels were raised. This bolt had to go through a wing form on the end panel after passing through the strongback on the side panel. The wing forms created beveled edges on the downstream corners of the piers.

Thus, although Gary and his crew had done similar work on Pier # 3 the previous day, all the anchor bolts had been in place. On Pier # 2, the southernmost panels (Panel # 1) on the east and west side were secured by only one anchor bolt. The panel was kept in place by the seam bolts attaching it to Panel # 2 and by a wooden two-by-four nailed across the wooden extensions on top of the two panels. The work which Gary was instructed to do, however, consisted of removing these bolts and the two-by-four so Panel # 2 could be replaced. After he and another worker removed the seam bolts, they climbed on top of the wooden extensions, Gary on Panel # 1 and his co-worker on Panel # 2, and pried the two-by-four loose. As soon as they accomplished this, Panel # 1 pivoted on its anchor bolt, causing Gary to fall to the pavement below.

Gary's widow Debra, as administratrix of his estate, brought this action against Alabama Power and various other parties, including Gary Haught and Gordon Amsler, two Alabama Power employees working at the Harris dam at the time of the accident. Only these three defendants remained in the action at the close of the trial, and the trial court denied their motions for directed verdict. The jury returned a verdict in favor of Debra, but only against Alabama Power, for the sum of $250,000. The trial court denied Alabama Power's motion for JNOV or, in the alternative, for new trial.

Alabama Power raises four issues: 1) Whether the trial court erred in denying Alabama Power's motion for directed verdict because Alabama Power did not have a duty to provide Gary Beam with a safe place to work, or, if it had such a duty, it did not breach it; 2) Whether the trial court erred in charging the jury that negligence or wantonness on the part of Manhattan-Walton or its employees could be imputed to Alabama Power; 3) Whether the trial court erred in charging the jury on wantonness as against Alabama Power; 4) Whether the trial court erred in admitting testimony as to the purported knowledge of Alabama Power.

Directed Verdict

Alabama Power cites a recent line of cases in support of its argument that it, as premises owner, did not have the responsibility for safety of employees of independent contractors, and did not undertake such a duty either in its contract with M-W or in its actions on the construction site. Beam cites cases reaching different results, distinguishes the cases cites by Alabama Power, and argues that Alabama Power did undertake to provide for safety, both by extensively retaining control of the manner of construction and by explicitly agreeing to supervise safety procedures and conduct safety inspections.

The following cases set forth the applicable law in this area:

In Blount Brothers Construction Co. v. Rose, 274 Ala. 429, 149 So.2d 821 (1962), this Court upheld a judgment on a verdict for the representatives of a deceased employee of a subcontractor against the general contractor. Rose died when he fell while climbing from a crane to a scaffold, and his widow sued the general contractor for negligently or wantonly failing to provide him with a safe place to work. This Court held that the contract between the government and the general contractor, requiring the contractor to provide safety devices, imposed on the contractor a duty to provide subcontractors' employees with a safe place to work; that wantonness "may arise from knowledge that persons, though not seen, are likely to be in positions of danger," and may be shown by inference even though it requires actual knowledge; and that neither wantonness nor assumption of risk was a defense to the charge of wantonness.

In Knight v. Burns, Kirkley & Williams Constr. Co., 331 So.2d 651 (Ala.1976), this Court reversed a dismissal granted to a general contractor. The Court held that, for non-delegable duties, "if the contractor owes a duty to a third person by reason of a contract or by law, he cannot divest himself of liability for the negligent performance of his duty by employing an independent subcontractor." Id., at 655.

Alabama Power Company v. Henderson, 342 So.2d 323 (Ala.1976), is very close on point to the instant case. Henderson was injured when a form for a smokestack ruptured, spilling concrete on him. The jury awarded damages to Henderson, an employee of a general contractor at an Alabama Power site, against Alabama Power. This Court affirmed, holding that the extensive control retained and exercised by Alabama Power over the manner in which the concrete was poured imposed upon it a duty to use due care in supervising the process. The Court held that Alabama Power was chargeable with knowledge of the characteristics of the concrete and the forms, and of the dangers posed by the combination of these characteristics; that Alabama Power had a duty of due care; and that it breached that duty.

The Court in Pate v. United States Steel Corp., 393 So.2d 992 (Ala.1981), relied on the law relative to the duties of a premises owner to affirm a directed verdict for U.S. Steel. Pate and another employee of a contractor at a U.S. Steel plant fell from a scaffolding while removing the forms used to construct a furnace pedestal. They alleged that U.S. Steel breached its duty, as general contractor, to provide them, as employees of a subcontractor, with a safe place to work. The Court cited the law that the premises owner owes no duty to the employees of an independent contractor, and that the test for whether such an owner is also a prime contractor is whether it reserved the right of control over the contractor's work, i.e., whether it retained the right to direct the manner in which the work was performed.

The Court in Pate held that the contract's terms showed only the relationship of owner and independent contractor. The contract also provided that "The safety of all persons employed by Contractor and his subcontractors on Owner's premises, or any other person who enters upon Owner's premises for reasons relating to this contract, shall be the sole responsibility of Contractor." Id., at 994.

Plaintiffs in Pate...