Bachner v. Rich

• Decision Date: 16 July 1976
• Docket Number: No. 2309,2309
• Citation: 554 P.2d 430
• Parties: Karl BACHNER and William G. Jones, Individually and doing business as Bachner-Northwest, a joint venture, Appellants, v. Kenneth RICH and Mary Rich, Appellees.
• Court: Alaska Supreme Court

Page 430

554 P.2d 430

Karl BACHNER and William G. Jones, Individually and doing

business as Bachner-Northwest, a joint venture, Appellants, v. Kenneth RICH and Mary Rich, Appellees.

No. 2309.

Supreme Court of Alaska.

July 16, 1976.

On Rehearing Aug 27, 1976.

Keith E. Brown and Sanford M. Gibbs, of Hagans, Smith & Brown, Anchorage, for appellants.

L. Ames Luce, of Kelly & Luce, Anchorage, Theodore R. Dunn, of Matthews, Dunn & Baily, Anchorage, for appellee.

OPINION

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and BURKE, JJ.

RABINOWITZ, Chief Justice.

This is an appeal from the judgment of the superior court in an action for personal injuries. After trial by jury, appellee Kenneth Rich was awarded damages of $450,000, and appellee Mary Rich received a verdict of $50,000. Following the superior court's denial of their motion for a new trial and motion for judgment notwithstanding the verdict, appellants filed a timely notice of appeal.

On July 28, 1970, Kenneth Rich was employed as a 'taper' by Totem Painting and Decorating Company. A taper covers and conceals the joints between abutting panels of sheetrock by placing a tape and taping compound over the joints. After taping, the covered joints are 'floated' to produce a smooth surface prior to painting.

Rich was working in McGrath, Alaska, on a project involving the construction of a new gymnasium and additional classrooms for the village school. Appellants Bachner and Jones, doing business as Bachner-Northwest, were the general contractors on the job. Totem had been chosen as subcontractor for the painting and taping work.

The contract between Bachner-Northwest and Totem provided that Totem would supply its own equipment, but that Bachner-Northwest would pay for the transportation of that equipment to the job site. However, it was later agreed that Bachner-Northwest would provide the scaffolding to be used on the job, in an apparent attempt to save Bachner-Northwest the cost of transporting Totem's scaffolding to McGrath. Donald Jones, Bachner-Northwest's job foreman, along with several other employees of Bachner-Northwest, constructed a rolling tubular pole scaffold for the use of those employed on the McGrath building project. Jones assumed that everyone on the job would be using the scaffold, and was familiar with the manner in which scaffolding of this type was customarily used for taping purposes.

The scaffold constructed by Jones was just under six feet high. Its principal parts (as illustrated by the photograph appearing in the appendix to this opinion) were: (A) two hulls-end support members; (B) two bearers-the upper portions of the hulls; (C) diagonal braces-stabilizing braces which connect the two hulls; (D) three ledgers-support beams spanning the two bearers; (E) planking-boards placed on top of the ledgers to form the stage or work surface; and (F) wheels-equipped with locks designed to prevent movement of the scaffold when engaged.

Jones 'cleated' the working surface by driving one 16-penny nail into the bottom of each of the three ledgers, then bending the nails around their respective bearers.

On July 23, 1970, Kenneth Rich began working on the mezzanine area of the gymnasium, using the scaffold provided by Bachner-Northwest. He continued to work in that area until July 28, 1970. On that day he apparently completed the taping process and was floating the tape joints in the ceiling and upper portions of the walls.

At approximately 11:50 a.m. Donald Jones heard a 'thud' from the gymnasium area. After a brief investigation, Jones assumed that the noise had been caused by a worker dropping tools or materials. When Rich did not arrive for the usual noon lunch break, a search was initiated by Jones and Robert Maxim. Rich was found lying unconscious in the mezzanine area, on his back, with his arms outspread, approximately two feet from the scaffold he had been using to perform his work. The scaffold was in a 'scissored' position with two of the three ledgers no longer supported by a bearer at one end. The 16-penny nails, which Jones had driven into the bottom of the ledgers for cleating, were bent flat, and a number of 8-penny nails used to attach the planking to the ledgers had partially pulled loose. The planking or working surface was at an angle where the two ledgers were no longer supported by the bearer.

A half-full five gallon bucket of taping compound was found on the floor, on its side, six feet from the scaffolding. There was evidence that it had rolled to its final resting place. A trowel was also found on the floor, near the bucket of taping compound.

Kenneth Rich is unable to recall what happened immediately prior to his being found by Jones and Maxim. The last thing he remembers is taking a break for a cup of coffee at approximately 11:20 a.m.

Rich, accompanied by Maxim, was flown to Anchorage and taken to the emergency room at Providence Hospital where he was first seen by Dr. William F. Mills, an orthopedic surgeon. Rich appeared somnolent, uncoordinated, and unable to provide a thorough history. He was observed to thrash about on the examination table, appeared unable to extrude his tongue well, and exhibited a positive Babinski sign in the right foot, indicating injury to the spine or brain. Dr. Mills diagnosed Rich as having sustained a contusion of the left frontal or temporal area of the brain and a possible strain of the lumbo-sacral spine. No external signs of physical injury were observed. However, Dr. Mills stated that the lack of such external injury was not inconsistent with his diagnosis, as brain injury from external trauma commonly occurs without physical markings on the body surface.

Dr. Perry A. Mead, a neurosurgeon, assumed the care and treatment of Kenneth Rich. When first seen by Dr. Mead, Rich appeared to be confused, showing signs of right side weakness and evidencing an abnormal reflex in his right foot. Dr. Mead made a tentative dagnosis of contusion of the left frontal temporal region of the brain and admitted Rich to Providence Hospital. During the first three days of hospitalization, Rich was incoherent and unable to recognize his wife. Upon discharge four days later, he still had many of the same signs and symptoms which were in evidence when he had been admitted to the hospital. Dr. Mead's diagnosis at discharge was contusion of the frontal parietal and frontal temporal portions of the brain. On August 4, 1970, Dr. Mead conducted an examination at his office, finding tenderness in Rich's right ribs. Rich also demonstrated an inability to maintain his balance and Dr. Mead noted that his right hand was not functioning properly. Rich was unable to read, could not perform coordination drills with either hand, and would say one thing when he meant another. Dr. Mead further observed abnormal reflexes in the lower limbs on the right hand side, a loss of sense of reality, and a manner of breathing indicating contusion and swelling of the brain.

Following his release from the hospital Kenneth Rich was unable to care for himself, requiring constant supervision, assistance and direction. It was approximately one month before he was able to undertake even the care of his personal hygiene. When he attempted to talk, he had difficulty pronouncing words and was observed to drool like a small infant. In the years that followed, he made some limited progress through the use of physical, psychiatric and vocational therapy. He did, however, undergo a pronounced personality change and is required to take Valium, Dilantin and Trompiz on a daily basis. According to his doctor, he suffers from the residual effects of a contusion of the left frontal temporal area of the brain, is unemployable and will remain so for the rest of his life. The prognosis for improvement is zero.

Prior to trial Rich was examined by an expert employed by Bachner-Northwest, Dr. Richard Mullins, a Seattle neurologist. Dr. Mullins concluded, from the diffused nature of the injury and history of Rich's symptoms, that Rich had suffered from a cerebral vascular accident or thrombosis stroke. His conclusion was partially based on the fact that it was difficult for a person to have sustained as massive an injury to the frontal lobe of the brain as Rich claimed without some external sign of injury. However, Dr. Mullins testified that severe contusion of the brain could occur without external evidence of injury. Dr. Mullins found Rich to be aphasic, forgetful, unable to give a coherent history, unable to rapidly tap his right foot, unable to coordinate the movements of his right hand, arm and foot, and suffering from headaches. The deep reflexes on the right side of his body were increased and the right superficial abdominal reflex was absent. All of these signs and symptoms were consistent with contusion of the brain according to Dr. Mullins. Dr. Mullins also found no indication in Rich's prior history of headaches, arterial sclerosis, high blood pressure, cardiovascular disease or other related disorders, which are often present in a patient suffering a thrombosis stroke. He further admitted that a thrombosis stroke is rare in a patient under 40. At the time of the incident Rich was 37 years of age. Dr. Mullins also stated that a high percentage of thrombosis stroke patients suffer stroke recurrence in a short period of time and have myocardial infarctions, of which there was no evidence in Rich's case.

Appellants' first claim of error concerns the superior court's refusal to direct a verdict in their favor. Rich's theory of liability was that appellant owed him a duty to exercise reasonable care to ensure the scaffold was safe for its foreseeable use, and that appellant breached that duty actually and proximately causing his injuries. ¹ At the close of appellees' case, appellants moved for a directed verdict on the issue of liability, claiming that there was no evidence from which fair-minded people could conclude that ...