Bacon v. Dixie Bronze Co., Inc.

• Decision Date: 28 June 1985
• Parties: William BACON and Mrs. William Bacon v. DIXIE BRONZE COMPANY, INC., a corporation. Gordon Elmer TUGGLE III v. DIXIE BRONZE COMPANY, INC., a corporation. 84-158, 84-611.
• Court: Alabama Supreme Court

Page 1177

475 So.2d 1177

William BACON and Mrs. William Bacon v. DIXIE BRONZE COMPANY, INC., a corporation.

Gordon Elmer TUGGLE III v. DIXIE BRONZE COMPANY, INC., a corporation.

84-158, 84-611.

Supreme Court of Alabama.

June 28, 1985.

Rehearing Denied Aug. 23, 1985.

E. Ray Large and Hub Harrington and William W. Smith of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellants.

Stanley A. Cash and M. Keith Gann of Huie, Fernambucq and Stewart, Birmingham, for appellee.

PER CURIAM.

The trial court granted summary judgment in favor of a building owner sued by two injured employees of an independent contractor who was modifying the building. The learned trial judge entered the following order granting summary judgment. We affirm that judgment and adopt the trial court's order as the opinion of this Court:

"A. Motion by Dixie for Summary judgment.

"Bacon and Tuggle make claim for the injuries and damages they sustained on December 2, 1980, while they were working on the roof of a building then owned by Dixie which was located in an industrial park area near Oneonta, Alabama, in Blount County.

"Dixie had contracted with Irondale Fabricators, an independent contractor, for the installation of a sand storage work on the roof of the Dixie building. Bacon and Tuggle were employees of Irondale Fabricators and were engaged in cutting a rectangular opening in the roof approximately eight feet by six feet, one side of which was to be located approximately eight inches from the edge of the roof.

"The roof itself was supported by channel beams, two of which crossed the area where the opening was to be made by Bacon and Tuggle. Using a cutting torch, Bacon began cutting through the channel beams or "purlins" that were supporting the section of the roof being removed. The two channel beams had already been cut in three places and Bacon was beginning to make the final cut. He testified as follows:

" 'Q. Okay. And you must have had some concern about that purlin going ahead and falling, because you had one guy holding over here and you had one guy holding over here.

" 'A. The reason I had the concern of that purlin falling is I knew that center piece was going to fall, because I had cut it at one end and was in the process of cutting the other end, but I didn't feel safe squatting down next to the edge, that close to the edge and holding with one hand and cutting with the other.

" 'Q. So you got Tuggle up there and he stood right by you?

" 'A. Yes, sir.

" 'Q. How close together were y'all?

" 'A. Almost touching.

" 'Q. Was that kind of awkward? Did you have to lean over him to make your cut, or did he lean over you to make his hold?

" 'A. No, sir. He squatted down next to the side and I kind of got down on one knee right next to him and reached over to make the burn.

" 'Q. Who was closest to the outside of the building?

" 'A. Gordon [Tuggle].

" 'Q. So you had Gordon holding one end of the purlin that you were cutting to complete the cut and you had Mike holding the other end which had already been cut.

" 'A. Yes, sir.

" 'Q. Did you make your cut completely before the tin fell with you?

" 'A. We--yes, sir.

" 'Q. And how long had you completed your cut before it fell?

" 'A. Just as soon as I made the cut.'

"Both Bacon and Tuggle were located over a part of the channel beam or purlin a short distance from the point where it was provided support. Bacon was engaged in cutting through the channel beam while Tuggle was going to hold the part of the beam which would have been freed by the cut so as to prevent it from falling. After the cut in the beam had been made, that portion of the channel beam immediately under Bacon and Tuggle collapsed so that both of them fell to the ground causing the injuries for which they now make claim.

"In opposition to Dixie's motion for summary judgment, Bacon and Tuggle argue that the collapse of the channel beam at the point of its support was the result of a defective weld made to connect the channel beam at the point of its support and that at least a scintilla of evidence has been presented to establish Dixie's liability to Bacon and Tuggle for the injuries resulting from the collapse of the channel beam.

"Tuggle has submitted the affidavit of Bruce Monical, a person having expert knowledge concerning the safe erection of steel membered buildings. Having inspected the entire building, Monical stated under oath the following regarding the area where the cut in the roof was made and Bacon and Tuggle fell:

" '... The quality of the work of the old building appeared to be excellent and the workmanship was done in conformity with a prefabricated construction of the beams, purlins, etc., according to a plan.

The addition which was added, beam for beam, purlin for purlin, and a continuance of the roof top appeared not to have been done so. That is, it was obviously constructed of scrap material which had not been specifically manufactured for construction according to a designed plan. Rather, the uneven lengths, sizes, and measurements of the structural steel members of this addition were so variable and non-uniform as to readily indicate to anyone knowledgeable in steel erection that this construction was not done according to a designed plan. Also, the welding and joining of the steel structural members, purlins, etc., as I found them to be was done in a very slipshod and haphazard matter [sic]. The welding was of a very poor quality and the area where the eave strut in question rested on top of a canopy beam and butted against the end of a joining eave strut was of very poor quality. Through pictures exhibited to me by the plaintiff's attorney, I was shown the eave strut in a bent downward position as it was supposedly located in its condition after the fall of Billy Bacon and Gordon Tuggle. Portions of these eave struts were still in place at the time of my inspection and they are properly described as channel beams or eave struts. It is my judgment from observing the eave struts that had they been properly welded at the areas where they butted against each other on top of the channel beam, the six foot seven inch eave strut extending from the top of the beam out toward the area where the cut was made on the eave strut would not have bent and given way under the weight of the two men as it did. I made an inspection of the eave strut on the other side of the cut and found it to be of a similar type and kind channel beam. It was properly attached to the channel beam on which it rested which in my judgment explains the failure of it to give way and bend when the two men made the first cut on that side of the gap.

" 'There is no doubt in my mind but this addition to the main building, which has been pointed out to me to be the location where this event occurred, was constructed and erected in a very careless and negligent way, and anyone expected to have crawled about on the roof of this building, should have been warned of the dangers inherent in the quality of the construction done in this addition to the original building. It is further clear to me that had any inspection been made of this building for safety reasons it would not have passed as a building which had been constructed to compose a reasonably safe structure upon its completion.'

"For purposes of Dixie's motion for summary judgment, this Court will consider that the condition of the collapsing channel beam was defective due to a defective weld at its point of support within a few feet of where Bacon and Tuggle were standing and making a cut in the beam. There remains the question whether liability can be imposed upon Dixie for this defective condition.

"In support of its motion for summary judgment, Dixie has submitted the affidavit of Clyde C. Turner, its assistant general manager, who states:

" '... The building where this accident occurred was constructed during the spring of 1980 by an independent contractor. To the best of my knowledge, no employees of Dixie Bronze assisted in or directed the actual construction of this building. I was not aware of any allegedly defective condition existing in the roof of this building. The roof was approximately thirty feet high and to the best of my knowledge no one from Dixie Bronze had the occasion to climb up to the roof to inspect the welding of the eave struts or purlins. Furthermore, I am aware of no one at Dixie Bronze who had any knowledge whatsoever that the building was not constructed properly or that it presented any hazards. The building was functional for the purpose that it was built. The plaintiffs were employees of Irondale Fabricators, independent contractors employed to install a sand tank in the building. Dixie Bronze did not control the employees of Irondale Fabricators nor did they tell the plaintiffs how to perform this work. Because the employees of Irondale Fabricators had been working on ladders in and around the roof prior to this accident, they had a better opportunity to inspect the roof structure than did the employees of Dixie Bronze. Furthermore, the roof structure adequately held the employees of Irondale Fabricators until such time that there were four cuts made in the roof's...