Armstrong v. Georgia Marble Co.

• Decision Date: 11 January 1991
• Citation: 575 So.2d 1051
• Parties: David ARMSTRONG v. GEORGIA MARBLE COMPANY. 89-1097.
• Court: Alabama Supreme Court

Page 1051

575 So.2d 1051

David ARMSTRONG v. GEORGIA MARBLE COMPANY.

89-1097.

Supreme Court of Alabama.

Jan. 11, 1991.

Allen G. Woodard and P. Russell Tarver of Cherry, Givens, Tarver, Aldridge, Peters, Lockett & Diaz, Dothan, for appellant.

B. Clark Carpenter of Wooten, Thornton, Carpenter, O'Brien & Lazenby, Talladega, for appellee.

KENNEDY, Justice.

This is an appeal of a summary judgment entered in favor of the defendant. We affirm.

The issues are: (1) what duty did the defendant, Georgia Marble Company, owe the plaintiff? and (2) was there evidence of a breach of that duty?

The plaintiff, David Armstrong, was an employee of Turner Painting Company, which had entered into a contract with Georgia Marble Company to sandblast and paint buildings owned by Georgia Marble; those buildings were located in Sylacauga, Alabama.

On July 10, 1986, Armstrong arrived at one of the buildings. He was instructed to help other employees wash the side of the building to prepare it for sandblasting and painting. Turner Painting Company was working on two roofs, a higher roof and a lower roof; the lower roof had skylights. Armstrong was helping other employees unload equipment onto the lower roof. Ken Turner, owner and vice-president of Turner Painting Company, instructed Armstrong and another employee to go to the higher roof and drop some ropes down to the lower roof. Sometime between the time Armstrong unloaded the equipment and the time he went to drop ropes from the higher roof, Turner told Armstrong that there were skylights on the lower roof of the building. Armstrong was not told where on the lower roof the skylights were located. There was dispute in the testimony as to whether these skylights were easily seen. Armstrong continued to work on the lower roof. As Armstrong began to leave the lower roof, he fell through a skylight and was injured.

Armstrong sued Georgia Marble for damages for the personal injuries he suffered in the fall. The court entered a summary judgment for Georgia Marble and Armstrong appealed.

A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. In reviewing a summary judgment, this Court must view the evidence in the light most favorable to the nonmoving party. Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975).

The duty owed by Georgia Marble Company to Armstrong is determined by whether the relationship between Georgia Marble Company and Armstrong was that of an owner of a premises and a business invitee or that of a master and a servant. Here, the parties agree that Georgia Marble Company did not retain the right to control the details of the work to be done by Turner Painting Company and its employees. Because Georgia Marble Company did not retain any control over the work to be done, the relationship between Georgia Marble Company and Armstrong was not that of a master and a servant. Their relationship was that of an owner of premises and a business invitee.

The owner of premises owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger can be avoided. Knight v. Seale, 530 So.2d 821 (Ala.1988) (citations omitted). In the instant case, skylights located on a roof where work was being done could be considered a dangerous condition. However, the owner of premises need not warn of dangers or defects that the business invitee knows of or that should be observed by the invitee in the exercise of reasonable care....