Baker v. Pidgeon Thomas Company

• Decision Date: 16 February 1970
• Docket Number: No. 19518.,19518.
• Citation: 422 F.2d 744
• Parties: Charles M. BAKER, Plaintiff-Appellant, v. PIDGEON THOMAS COMPANY and Allen & Hoshall, Engineers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

422 F.2d 744 (1970)

Charles M. BAKER, Plaintiff-Appellant, v. PIDGEON THOMAS COMPANY and Allen & Hoshall, Engineers, Defendants-Appellees.

No. 19518.

United States Court of Appeals, Sixth Circuit.

February 16, 1970.

Tom Mitchell, Jr., Memphis, Tenn, R. Lee Winchester, Jr., James A. Lawrence, F. W. Jeffcoat, Memphis, Tenn., on the brief; Goff, Winchester & Walsh, Memphis, Tenn., of counsel, for appellant.

James W. McDonnell, Jr., Memphis, Tenn., James C. Hale, West Memphis, Ark., Memphis, Tenn. on the brief; Hale & Fogleman and Canada, Russell & Turner, Memphis, Tenn., of counsel, for Pidgeon Thomas Co.

Thomas R. Prewitt, Memphis, Tenn., Ralph W. Farmer, Memphis, Tenn., on brief; Nelson, Norvell, Wilson, McRae, Ivy & Farmer and Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, Tenn., of counsel, for Allen & Hoshall.

Before EDWARDS, McCREE, and BROOKS,^* Circuit Judges.

McCREE, Circuit Judge.

Charles Baker was operating a backhoe (a tractor-type vehicle with a rear-mounted scoop used for excavating and shoveling) on a construction project in West Memphis, Arkansas, when a steel joist forty feet in length fell from a twenty-four foot high steel column and struck his back. His spine was shattered, and he is now a paraplegic. He collected $33,330.70 from his employer's workman's compensation insurer, and then filed suit in the United States District Court in Memphis against some of the other contractors who were on the project. We consider his appeal from a directed verdict granted to defendant engineers, Allen & Hoshall, and from a jury verdict in favor of the steel erector, Pidgeon Thomas Company.¹

I. The Directed Verdict for Allen & Hoshall

The District Court, by granting a directed verdict in favor of defendant Allen & Hoshall, held that under Arkansas law their contract with the owner created no duty to make safety inspections of the partially completed structure. On appeal, both Baker and Allen & Hoshall rely on Walker v. Wittenberg, Delony & Davidson, Inc., 241 Ark. 525, 412 S.W.2d 621 (1967), and Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (1960). Although these cases reach opposite results, they both hold that the agreement between owner and contractor determines whether duties to other persons have been assumed by the contractor. Walker v. Wittenberg, Delony & Davidson, Inc., 241 Ark. at 97, 412 S.W. 2d 621; Erhart v. Hummonds, 232 Ark. at 137, 334 S.W.2d 869.

As in most substantial construction projects, the relationships and responsibilities of the owner, the general contractor, and the subcontractors were governed by a set of detailed agreements. Allen & Hoshall contracted with the owner, Boise Cascade, to design a building and "to act in a general supervisory capacity throughout the construction period." This contract provided for periodic inspections on the job site by Allen & Hoshall, but it did not require the firm to maintain a constant day-to-day superintendence over the general contractor and the subcontractors.

It is clear from this contract that Allen & Hoshall's primary obligation was to design the building and to supervise its construction to insure that design and material specifications would be followed. There was no requirement that Allen & Hoshall make safety inspections. Nor were they given authority to stop work for safety reasons as they could when they detected deviations from specifications.

Appellant argues that Allen & Hoshall's supervisory duties required it to determine whether the steel erector, Pidgeon Thomas, was complying with the AISC Code² as required by its contract with Boise Cascade. He contends that the joist would not have fallen from the steel column if Pidgeon Thomas had followed the Code, and had bolted or welded it instead of permitting it to be held in place on the column solely by its own weight. However, there is nothing in Allen & Hoshall's contract with the owner that imposed a duty to ascertain whether all the subcontractors were conforming to their contracts with the owner, except to the extent those contracts required conformity with design specifications. Accordingly, we hold that the District Court did not err in granting a directed verdict for Allen & Hoshall.

II. The Jury Verdict for Pidgeon Thomas

Appellant contends that the jury's finding that Pidgeon Thomas was not guilty of any negligence which was a proximate cause of the injury cannot stand, because the instruction on the issue of negligence was an erroneous statement of Arkansas law.

Appellant requested an instruction which would have made it clear to the jury that adherence to industry custom and practice would not necessarily negative the existence of any negligence. The District Court refused this request and instead gave a charge based on Arkansas Model Instruction (AMI) 1204,³ which reads in part: "Ordinary care on the part of a contractor means that degree of skill and care ordinarily possessed and exercised by contractors doing the same or similar work."

Arkansas law governs in this diversity case, and it appears from the decisions of the Arkansas Supreme Court that AMI 1204 only incompletely, and therefore inaccurately, states the applicable standard of care. The five cases cited in support of AMI 1204 by its authors⁴ hold that a two-part instruction is necessary: a contractor is held both to custom and industry standards and to the standard which would be followed by a reasonably prudent man. Souter v. Carruthers, 237 Ark. 590, 592, 374 S.W.2d 474 (1964); Hogan & Co. v. Fletcher, 236 Ark. 951, 953, 370 S.W.2d 801 (1963); Southeast Constr. Co. v. Ellis, 233 Ark. 72, 76-77, 342 S.W.2d 485 (1961); Stanton-White Dredging Co. v. Braden, 137 Ark. 127, 132-133, 208 S.W. 598 (1919); Mitchell v. Hahn, 131 Ark. 286, 289-290, 198 S.W. 528 (1917). Thus it would appear that a contractor must adhere to whichever of the two standards is the more exacting if he is not to be held negligent.⁵ The District Judge apparently recognized this when he stated in colloquy with counsel concerning the jury instructions, "I intended to charge two duties."

Unfortunately, we believe that the instruction which he gave did not sufficiently charge both duties. It is useful to quote the instruction at some length:

When I used the word "negligence" in these instructions I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence in this case. It is for you to

...