Bartak v. Bell-Galyardt & Wells, Inc., BELL-GALYARDT
| Decision Date | 12 August 1980 |
| Docket Number | BELL-GALYARDT,79-1716 and 79-1717,79-1518,Nos. 79-1517,79-1536,s. 79-1517 |
| Citation | 629 F.2d 523 |
| Parties | Carol A. BARTAK, Special Administratrix for the Estate of John A. Bartak, Deceased, Appellee, v.& WELLS, INC., Appellant, Hammel-Green-Abrahamson, Inc.; Reid Burton Construction, Inc., Appellees, Leslie Koss, Appellant, Curran Nielson, d/b/a Nielson Roofing a/k/a Curran V. Nielson Painting and Decorating, Inc., Appellee (two cases). Carol A. BARTAK, Special Administratrix for the Estate of John A. Bartak, Deceased, Appellee, v. RAPID CITY AREA SCHOOL DISTRICT NO. 54; Bell-Galyardt & Wells, Inc.; Hammel-Green-Abrahamson, Inc.; Reid Burton Construction Co., Inc., Appellant, Leslie Koss, Kinning and Reil, Inc. Curran Nielson, d/b/a Nielson Roofing a/k/a Curran v. Nielson Painting and Decorating, Inc., Appellee. Carol A. BARTAK, Special Administratrix for the Estate of John A. Bartak, Deceased, Appellee, v. RAPID CITY AREA SCHOOL DISTRICT NO. 54, Appellee, Bell-Galyardt & Wells, Inc., Appellant, Hammel-Green-Abrahamson, Inc.; Reid Burton Construction, Inc., Appellees, Leslie Koss, Appellant, Kinning and Reil, Inc., Appellee, Curran Nielson, d/b/a Nielson Roofing a/k/a Curran V. Nielson Painting and Decorating, Inc., Appellee. Carol A. BARTAK, Special Administratrix for the Estate of John A. Bartak, Deceased, Appellee, v. RAPID CITY AREA SCHOOL DISTRICT NO. 54; Bell-Galyardt & Wells, Inc.; Hammel-Green-Abrahamson, Inc., Appellees, Reid Burton Construction Co., Inc., Appellant, Leslie Koss and Kinning and Reil, Inc., Appellees, Curran Nielson, d/b/a Nielson Roofing a/k/a Curran V. Nielson Painting and Decorating, Inc., Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Edward C. Carpenter, Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, S. D. (argued), and William G. Porter, Rapid City, S. D., on brief, for Bell-Galyardt.
Franklin J. Wallahan, Hanley, Wallahan & Konenkamp, Rapid City, S. D., made argument for Reid Burton Co.
George H. Moyer, Jr., Moyer, Moyer & Egley, Madison, Neb., Robert L. Varilek, Rapid City, S. D., for Bartak.
Charles M. Thompson, May, Adam, Gerdes & Thompson, Pierre, S. D., for Nielson.
Robert F. LaFleur, Rapid City, S. D., for Hammel-Green-Abrahamson, Inc.
Before STEPHENSON and McMILLIAN, Circuit Judges, and THOMAS, * Senior District Judge.
This is an appeal from all the judgments entered in a diversity construction site wrongful death action instituted by Carol A. Bartak, surviving spouse of and special administratrix for the estate of John A. Bartak (Bartak), against several defendants. Reid Burton Construction Co. (the general contractor) and Bell-Galyardt & Wells, Inc. (the architects) were the only defendants found negligent. Each appeals the findings of negligence against it. The architects also appeal denial of their contractual indemnity claim against the general contractor. The general contractor likewise appeals denial of its contractual indemnity claim against Curran V. Nielson Painting & Decorating, Inc. (the subcontractor). The district court erred in refusing to give a contributory negligence instruction as requested by five defendants; therefore, we reverse and remand for a new trial on the negligence issues. 1
In April of 1974, the architects entered into a contract with the Rapid City Independent School District to provide architectural services in the construction of a new high school. Because that contract required the architects to associate with a nationally recognized architectural firm with expertise in the design and construction of school buildings, the architects entered a separate agreement with the Minneapolis firm of Hammel-Green-Abrahamson, Inc. (the consultants). The architects chose Leslie L. Koss as their full-time project representative to remain on the job site throughout the construction phase of the project.
In November of 1975, the school district awarded three prime contracts. The general construction contract was awarded to the general contractor. Amelco received the electrical contract. The mechanical contract, which included the plumbing and sprinkler system, was awarded to Bartak's employer, Kinning & Reil, Inc. (employer). The general contractor subcontracted the fiberboard roof decking portion 2 of its contract to the subcontractor.
The fiberboard decking was installed by the subcontractor in May of 1977. On June 20, 1977, Bartak and fellow worker Steve Cutshall climbed into a "dead space," 14 5/8 inches wide by 100 feet long, in the ceiling of the school gymnasium in order to reconnect a sprinkler pipe. A piece of fiberboard decking gave way under Bartak's weight and he fell thirty or forty feet to the gymnasium floor. Injuries from that fall resulted in Bartak's death a few days later.
Bartak's widow brought this negligence action against: (1) the school district, (2) the architects, (3) the consultants, (4) Leslie Koss as an individual, (5) the general contractor, and (6) the subcontractor.
Each of the defendants filed a cross-claim seeking indemnity or contribution against all of the other defendants, except that the two architectural firms did not cross-claim against one another.
The school district was dismissed on motion for summary judgment. The consultants were dismissed on a motion for directed verdict at the conclusion of all the evidence.
The court combined the architects and Leslie Koss for purposes of the instructions and the verdict. The court refused to submit to the jury the defenses of contributory negligence and assumption of the risk, and also refused to submit to the jury special interrogatories on the issues of indemnity and contribution.
The jury found no negligence by the subcontractor. The jury returned a verdict against the architects and Leslie Koss and a verdict against the general contractor. In response to special interrogatories, the jury found the architects and Leslie Koss thirty-five percent (35%) negligent and the general contractor sixty-five percent (65%) negligent. The jury assessed general damages of $590,000.00 and special damages of $10,107.72.
Thereafter, the court asked for briefs on the indemnity and contribution issues and issued its opinion in favor of the subcontractor. Bartak v. Bell-Galyardt & Wells, Inc., 473 F.Supp. 737 (D.S.D.1979).
On appeal the architects and the general contractor contended that the trial court committed prejudicial error in refusing to submit to the jury issues of fact concerning the contributory negligence of Bartak. We agree.
Contributory negligence was one of the main theories of both appellants. Cutshall, the worker who was with Bartak at the time of the accident, testified that the dead space was enclosed except for a three-foot wide opening left by a missing panel. After entering the dead space, they had to walk sideways because it was only 14 5/8 inches wide and had to crouch because of the low ceiling. Cutshall did not like being in the dead space because it was so small and asked Bartak if they could not get to the pipes some other way. About fifty feet into the dead space, they came to a four-inch electrical conduit which ran up through the middle of the opening. Cutshall told Bartak that he did not think anyone could get past it. Bartak squeezed past the conduit first. Cutshall was still in the process of squeezing past it when Bartak fell. While Cutshall did not recall any specific instructions that suspended pipes were to be worked on from below, he was aware that that was how such work was customarily accomplished by their employer. It was undisputed that, at their employer's request, lifts were available for access to the pipes from below.
There was testimony from others on Bartak's conduct. Notwithstanding that their employer required safety ropes to be used by anyone working more than eight feet from the ground, Bartak and Cutshall walked across both a fifteen-inch beam that was over thirty-six feet from the floor and a wall the top of which was over thirty feet above the floor without safety ropes. Also the general contractor's job superintendent testified they would have had to go over or under safety rails which blocked the opening to the dead space.
The general contractors had proposed instructions 7, 8 and 9 on the issue of contributory negligence, and instruction 20, a special interrogatory on the percentage of negligence attributable to Bartak. The architects had proposed instruction 11 on contributory negligence and instruction 32, a special interrogatory. Nevertheless, the trial court rejected the above instructions and gave instead instruction 22 which instructed the jury that, as a matter of law, Bartak was not contributorily negligent and that the jury was to disregard any evidence of negligence on his part.
The burden of proof is a substantive matter, governed by state law. Chicago, Rock Island & Pacific R.R. v. Breckenridge, 333 F.2d 990, 991 (8th Cir. 1964). If a matter is an affirmative defense under state law, it will be treated as such in a diversity action in a federal court of that state. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1272 at 317 (1969). When contributory negligence is pleaded as an affirmative defense, under South Dakota law, the burden is on the defendant to put in evidence on that theory. Cf. Thomas v. St. Mary's Roman Catholic Church, 283 N.W.2d 254, 259 (S.D.1979) (); see Smith v. Chicago, Minneapolis & St. Paul Ry., 4 S.D. 71, 55 N.W. 717 (1893). Contributory negligence and comparative negligence are questions of fact which, in South Dakota, may be withdrawn from jury considerations only when the facts are not in dispute and those facts lead to one inescapable conclusion. Schultz & Lindsay Construction Co. v. Erickson, 352 F.2d 425, 432 (8th Cir. 1965) (applying South Dakota law); Ricketts v. Tusa, 87 S.D. 702, 214 N.W.2d 77, 79 (1974); Myers v. Quenzer, 79...
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