Brewster v. Salveson Const., Inc.

• Decision Date: 15 December 1988
• Docket Number: No. 88-68,88-68
• Citation: 765 P.2d 1350
• Parties: 13 O.S.H. Cas. (BNA) 1970 David Douglas BREWSTER, Appellant (Plaintiff), v. SALVESON CONSTRUCTION, INC., a Wyoming corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1350

765 P.2d 1350

13 O.S.H. Cas. (BNA) 1970

David Douglas BREWSTER, Appellant (Plaintiff), v. SALVESON CONSTRUCTION, INC., a Wyoming corporation, Appellee (Defendant).

No. 88-68.

Supreme Court of Wyoming.

Dec. 15, 1988.

George Zunker and Ronald E. Triggs of Sullivan & Zunker, Cheyenne, for appellant.

Richard P. Boley of Lathrop, Rutledge & Boley, P.C., Cheyenne, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice.

This is an appeal from an order granting summary judgment to the general contractor, Salveson Construction Inc. (Salveson), and against appellant David Douglas Brewster (Brewster), an independent contractor's employee. This case requires us to apply our analysis in Hill v. Pacific Power and Light Company, 765 P.2d 1348 (Wyo.1988). As a result, we affirm the summary judgment.

Our standard of review of an order granting summary judgment appears in Johnston v. Conoco, Inc., 758 P.2d 566, 568 (Wyo.1988). We apply that standard here.

The State of Wyoming, by the Board of Charities and Reform, contracted with Salveson to move dirt for site preparation and to lay underground plumbing in relation to the construction of the Wyoming Women's Center (Center) in Lusk, Wyoming. In turn, Salveson subcontracted with Empire Mobile Plumbing, Inc. (Empire) to perform the plumbing work, and more specifically, to construct water and sewer lines to and from the Center site. Empire employed Brewster as a backhoe operator and laborer.

On or before October 26, 1982, Salveson had completed its site grading operation on the job site and removed its personnel and equipment from the job site. Salveson's site preparation work, including all fill, compaction and grading, had been completed and was in the condition as finally accepted by the project's engineers as of October 26, 1982.

On October 27, 1982, a water line previously laid by Empire developed a leak. Only Empire employees were at this water line leak site on this day. At 8:00 a.m., Empire's backhoe operator, Don Watson, opened a trench in which the leaking water line lay. Watson was responsible for the manner in which the trench was opened. Also operating a backhoe on this day was Brewster, who had been assigned that work activity by Empire's president, John Barry. Brewster's co-employee, Marty Wayne Moody, began working in the trench around 9:00 a.m.; the trench contained about one and one-half feet of standing water. The trench conformed to other trenches previously dug by Empire, and the walls were not shored and not graded to an angle of repose.

According to Brewster, his personal habit was to grade trench walls to an angle of repose. During the time Brewster and Moody worked for Empire, no materials were ever available to shore a trench or other excavation.

After Brewster's co-employee Watson opened the trench, and at a time when the trench was in essentially the same condition as when it collapsed causing Brewster's injury, Empire's Barry arrived at the site and twice inspected the excavation. Barry at no time requested that shoring materials be used or that the trench site be graded to an angle of repose. Shortly after Barry's inspection, Moody asked backhoe operator Watson to increase the grade on the walls as several portions of the trench had previously fallen. Watson dug away a portion of the right side of the excavation, but not the full length of the trench. Watson did not grade the trench to an angle of repose; rather, he simply cut away a portion of it to permit additional working room and to try preventing the wall's collapse.

Around 3:45 p.m. that day, Empire's crew supervisor, Loren Malone, ordered Brewster to bail...