Bieger v. Consolidation Coal Co., Civ. A. No. 84-0188-A.

• Decision Date: 02 December 1986
• Docket Number: Civ. A. No. 84-0188-A.
• Parties: Daniel R. BIEGER, Administrator, etc., Plaintiff, v. CONSOLIDATION COAL CO., Defendant and Third-Party Plaintiff, v. COWIN AND CO., INC., Third-Party Defendant.
• Court: U.S. District Court — Western District of Virginia

650 F. Supp. 1290

Daniel R. BIEGER, Administrator, etc., Plaintiff, v. CONSOLIDATION COAL CO., Defendant and Third-Party Plaintiff, v. COWIN AND CO., INC., Third-Party Defendant.

Civ. A. No. 84-0188-A.

United States District Court, W.D. Virginia, Abingdon Division.

December 2, 1986.

Robert T. Copeland, Abingdon, Va., for plaintiff.

W.B. Wilcox, Salt Lake City, Utah, W. Wade Massie, Abingdon, Va., C. Adrian White, Bristol, Va., for defendants.

MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

This case is before the court on defendant's motion for summary judgment as to both the plaintiff and the third-party defendant. Jurisdiction is based on diversity of citizenship and arises out of a freak accident that occurred when plaintiff's decedent, Horn, was employed by and working for the third-party defendant, Cowin and Company, Inc. ("Cowin"). At that time Cowin was constructing a ventilation shaft for defendant Consolidation Coal Company ("Consol") in Buchanan County, Virginia. A 40-pound plumb bob accidentally fell the length of the 1400-foot shaft and struck and killed Horn. Plaintiff seeks damages for the alleged wrongful death of Horn.¹

Consol was developing a mine and had contracted with Cowin to construct three shafts including a ventilation shaft that was the site of the underlying accident. On January 5, 1983 some of Cowin's employees had returned to the bottom of the shaft after surfacing for a meal. A sliding door at the top of the shaft blocked its entrance, but the door was not closed tightly leaving a six-inch gap between the door and the wall of the shaft. A drill basket² was above the sliding door attached to an apparatus used to transport men and materials from the mouth of the shaft to its bottom. A plumb bob, which is not ordinarily carried in a drill basket, was in the drill basket. A hoist operator was guiding the drill basket to the center of the door to lower it. At the time of the accident, however, the drill basket caught on the door. The operator lost control; and, consequently, the basket struck a guard rail causing the plumb bob to fall out of the basket and through the crack to the bottom of the shaft where it struck and killed Mr. Horn.

After the accident a state inspector directed Cowin to raise the retaining edge on the drill basket to six inches to comply with the requirements of Va.Code § 45.1-69(q). No evidence exists, however, that prior to the accident any incident involving the basket had occurred. Union, state, and federal inspectors had visited the project numerous times; and no one had ever questioned the design of the basket.

Plaintiff alleges that Consol formulated and implemented safety programs and procedures and that, consequently, Consol knew or should have known of the hazardous conditions and routines that resulted in Horn's death. However, the court finds that the evidence demonstrates neither Consol's responsibility for nor provision of safety services. The relationship between Consol and Cowin is clearly that of owner and independent contractor. Not only does the contract define the relationship as such; but Consol provided plans and specifications for the project whereas Cowin furnished all the labor, material, and equipment and was responsible for daily decisionmaking. The only right that Consol reserved is the right to inspect the shaft to ascertain whether the work satisfies contract requirements. Furthermore, Cowin agreed to indemnify Consol for any damages or injuries arising from its work. Additionally, no evidence indicates that Consol's plans and specifications for the shaft are defective or that any of Consol's employees were present or involved at the time of the accident.

The threshold question before the court is whether Consol was guilty of any negligence that proximately caused Horn's death. Absent such liability Consol's third-party claim against Cowin is moot.

A landowner's duty to persons on his property varies with the status of those persons.³ An invitee is a person who enters another's land by invitation in connection with the landowner's business for the benefit of the landowner or for the mutual benefit of the landowner and the invitee. A licensee is a person who enters another's land with permission but who goes on the land for his own purpose rather than for the benefit of the landowner.

A landowner owes a greater duty to an invitee than to a licensee because an invitee enters a landowner's premises at the request and for the benefit of the landowner. Under Virginia law this duty to an invitee is "to exercise reasonable care to make the premises safe ... and to warn of hidden dangers or defects in the premises but only to the extent that he has knowledge thereof or should, in the exercise of reasonable care, have such knowledge." Gauldin v. Virginia Winn-Dixie, Inc., 370 F.2d 167, 169 (4th Cir.1966). See also Vandergrift v. United States, 500 F.Supp. 229, 233 (E.D.Va.1978). The landowner must inspect his property and subsequently either repair or warn of hidden dangers and defects of which the owner knows or should know but of which the invitee does not and could not reasonably know. Trimyer v. Norfolk Tallow Co., 192 Va. 776, 66 S.E.2d 441 (1951). See also Gauldin v. Virginia Winn-Dixie, Inc., 370 F.2d 167 (4th Cir.1966), and Hogge v. United States, 354 F.Supp. 429 (E.D.Va.1972). Two logical limitations mitigate a landowner's duty to an invitee: a time limitation and an opportunity limitation. First a landowner is not liable until a danger or defect has existed "for such a length of time as to make it the owner's duty in the exercise of ordinary care to have discovered it." Vandergrift v. United States, 500 F.Supp. 229, 234 (E.D.Va.1978). See also Hogge v. United States, 354 F.Supp. 429 (E.D.Va. 1972), and Miracle Mart, Inc. v. Webb, 205 Va. 449, 137 S.E.2d 887 (1964). Furthermore, a landowner has no duty to warn "unless its knowledge or opportunity for knowledge of the danger was superior" to the invitee's. Trimyer v. Norfolk Tallow Co., 192 Va. 776, 781, 66 S.E.2d 441, 446 (1951).

Applying this standard of care to the instant facts clearly relieves Consol of any responsibility to either remedy or warn of the situation involving the plumb bob. The testimony indicates that Consol was not involved in the shaft construction beyond preparation of the plans and subsequent inspection of the work site for quality and progress. Consol did not know of the circumstances resulting in Horn's death; and insufficient time precludes imputing constructive knowledge to Consol. Furthermore, Horn had superior opportunity and knowledge; Cowin and its employees were considerably more familiar with the drill basket and the equipment related thereto than was Consol. Consol could not have possibly foreseen the unusual chain of events that led to Mr. Horn's death: that the door would not close; that the drill basket would catch on the door; that the operator would be unable to control the basket;...