Brierley v. Anaconda Co.

• Decision Date: 04 June 1974
• Docket Number: No. 11414--PR,11414--PR
• Citation: Brierley v. Anaconda Co., 111 Ariz. 8, 522 P.2d 1085 (Ariz. 1974)
• Parties: Janice M. BRIERLEY, as surviving spouse of Charles S. Brierley, Deceased, and for and on behalf of the surviving child of Charles S. Brierley, Appellant, v. The ANACONDA COMPANY, a Montana corporation, Twin Buttes Mine Division, Appellee.
• Court: Arizona Supreme Court

Page 1085

522 P.2d 1085

111 Ariz. 8

Janice M. BRIERLEY, as survivingspouse of Charles S. Brierley, Deceased, and for and on behalf of the surviving child of Charles S. Brierley, Appellant, v.The ANACONDA COMPANY, a Montana corporation, Twin Buttes Mine Division, Appellee.

No. 11414--PR.

Supreme Court of Arizona, In Banc.

June 4, 1974.

Rehearing Denied July 2, 1974.

Davis & Eppstein by Thomas J. Davis, Tucson, for appellant.

Chandler, Tullar, Udall & Richmond by Jack I. Redhair, Tucson, for appellee.

STRUCKMEYER, Justice.

Janice M. Brierley brought this action for and on behalf of herself and the surviving child of Charles S. Brierley against the Anaconda Company, a Montana corporation, Twin Buttes Mine Division, for damages for wrongful death.From a jury's verdict and the judgment thereon in favor of Anaconda, she appeals.The Court of Appeals reversed, 21 Ariz.App. 7, 515 P.2d 34.Opinion of the Court of Appeals vacated and judgment affirmed.

The deceased, Charles S. Brierley, Sr., on January 22, 1971, was a journeyman ironworker employed by Chapman-Dyer Steel Manufacturing Company, an independent contractor.Chapman-Dyer was not a party to this suit.It had contracted with Anaconda to install a modified dust collector system in Anaconda's secondary crusher at its Twin Buttes Mine located approximately 25 miles south of Tucson, Arizona.No target date for completion was set in the contract and Anaconda's work took priority over Chapman-Dyer's.

On the day of Brierley's death, he and two others were to install a twelve-foot long, 14-inch diameter pipe in a dust collector hood located over a moving conveyor belt.In order to fit the pipe in place, it had to be raised by a hoist.This was to be accomplished by passing a cable around the pipe and raising the pipe above the conveyor belt in order to insert it into the top of the dust collector hood.As the pipe was being raised, the cable slipped and the pipe struck Brierley, who was either standing on or mounting the dust collector hood.Brierley was thrown onto the moving conveyor and before the conveyor could be stopped he sustained injuries from which he died.

The conveyor contained a safety device consisting of a cable running horizontal and parallel to the conveyor belt which, when pulled, stopped the conveyor.This cable, or pull cord as it was sometimes described in the evidence, had been released at the point where the hood was installed from its support at one end and either tied back or thrown back so that it was not operable.One witness expressed the view that if he had been able to pull the cable he might have been able to save Brierley.

The appellant in her brief states that the two main issues in the case are (1) Was the appellee negligent in operating its conveyor belt while men were working near or over the conveyor belt when it knew or should have known that men would be working over the conveyor belt? and (2) Was the appellee negligent in not discovering and repairing the broken pull cord?

The evidence tended to establish that the conveyor was not always in operation during the day shift when Chapman-Dyer was working.Other evidence tended to show that the workmen had been instructed to install scaffolding if they worked over a belt.There was also evidence that planking could have been laid so as to cover 'the entire area there.'Both scaffolding and planking were available from Anaconda.There was also testimony that it was unnecessary to work over the moving conveyor since there was other work available until the conveyor was not in operation.

The appellant first urges that the trial court erred in giving appellee's requested instruction No. 13 on contributory negligence.The appellant did not, however, object to the giving of the appellee's requested instruction No. 13.She now contends that the giving of the instruction was either a comment on the evidence or was fundamental error.

The portion of the instruction of which the appellant complains reads:

'If you find that the deceased was negligent and that such negligence was a proximate cause of his injuries, then your verdict should be for the defendant.'

Although appellant strenuously argues this portion of her appeal, we think it unnecessary to point out more than that the specific language used in the court below has been repeatedly accepted as a proper statement of law by this Court.Mantovani v. Green, 90 Ariz. 376, 368 P.2d 448(1962);Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444(1962);Kelch v. Courson, 103 Ariz. 576, 447 P.2d 550(1968);Evans v. Pickett, 102 Ariz. 393, 430 P.2d 413(1967).We are not convinced we should disturb our former holdings.

Appellant asserts that the trial court erred in instructing the jury in accordance with appellee's requested instruction No. 3 without also giving her requested instruction No. 15.Appellee's instruction No. 3 reads:

'You are instructed that an owner of land who retains general supervision of a construction site has a duty to exercise reasonable care to keep the premises in a reasonable, safe condition for workmen who are working there, and to warn those workmen of any dangers which would unnecessarily expose them to injury.The owner of land has no duty to warn workmen of conditions which are open and obvious.'

It is argued that appellee's No. 3 is not a complete statement of the law and is misleading in that there are occasions when the owner of land has a duty to warn workmen of conditions which are open and obvious.

Appellant's instruction No. 15 reads:

'I instruct you that a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee, notwithstanding its known or obvious danger.In such cases, the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection.This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position, the advantages of doing so would outweigh the apparent risk.'

The first paragraph of appellant's requested instruction No. 15 is identical to § 343A(1) of the Restatement of Torts 2d, 'Known or Obvious Dangers' and the second paragraph is a part of comment (f) thereto.

It is appellee's position that appellant's instructions Nos. 8 and 14 cover the subject matter of the requested instruction No. 15.Appellant's instruction No. 14 reads:

'I instruct you that a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, but only if he knows, or by the exercise of reasonable care would discover, the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and fail to exercise reasonable care to protect them against the danger.'

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