Brierley v. Anaconda Co.

• Decision Date: 26 October 1973
• Docket Number: No. 2,CA-CIV,2
• Citation: 515 P.2d 34,21 Ariz.App. 7
• 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. 1391.
• Court: Arizona Court of Appeals

Page 34

515 P.2d 34

21 Ariz.App. 7

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.

No. 2 CA-CIV 1391.

Court of Appeals of Arizona, Division 2.

Oct. 26, 1973.

Rehearing Denied Nov. 28, 1973.

Review Granted Jan. 15, 1974.

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

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

OPINION

HOWARD, Judge.

A judgment entered on a jury verdict in favor of the appellee, defendant below, in a wrongful death action instituted by appellant, plaintiff below, is the subject of this appeal. The major thrust of plaintiff's attack is directed to certain jury instructions either given or refused. ¹

Briefly, the facts are as follows. On January 22, 1971, plaintiff's decedent, a journeyman ironworker, was an employee of the Chapman-Dyer Steel Manufacturing Company, an independent contractor which had undertaken to construct and install a dust collector system in Anaconda's secondary crusher building at its Twin Buttes Mine site located approximately twenty-five miles south of Tucson. That morning when the decedent reported to work at approximately 8:00 a.m., he was directed by his supervisor to work at the south end of a conveyor belt located in the secondary crusher building. He was to work on a pipe installation with the supervisor, also a journeyman ironworker, and an apprentice ironworker. The pipe, a fourteen-inch, ninety degree L approximately twelve feet long and weighing approximately 200 pounds, had to be fitted into a dust collector hood located over the south end of the conveyor belt. It was to extend above the hood and connect to another fourteen-inch pipe approximately fifteen feet above the conveyor belt. In order to do this, the pipe had to be raised by a hoist which was accomplished by placing a choker cable around the pipe with an 'eye' at one end and placing the hoist hook through the 'eye'.

The decedent placed the choker and started to raise the pipe above the conveyor belt. The apprentice was standing on the dust collector hood above the conveyor belt and the supervisor had just climbed upon the hood when the choker slipped and knocked the decedent, who had started the climb up on the hood, on to the conveyor belt which was moving. The supervisor attempted to aid him--he grabbed him under the arms and tried to hold him but was pulled on to the moving conveyor belt himself and sustained serious injuries. The apprentice also tried to assist the decedent but the decedent yelled to him to shut the belt off.

The subject conveyor belt was used to convey ore from the secondary crusher to the coarse ore storage. It was sixty inches wide, approximately one-fourth of a mile long, and traveled at a rate of 425--600 feet per minute. It was equipped with safety pull-cords on each side which ran the entire length of the belt and it took approximately thirty seconds for the belt to come to a complete stop after the emergency pull-cord was activated.

After the decedent yelled to the apprentice to shut off the belt, the apprentice who was on the east side of the dust collector hood jumped down and attempted to reach for the pull-cord located on the east side of the belt but found it missing. He then ran around to the west side of the belt to pull the cord located on that side. It was later discovered that the pull-cord on the east side of the belt had been tied out of reach of anyone who might need to use it. According to the apprentice's testimony, he thought he could have saved the decedent had the pull-cord been in place on the east side of the belt.

There was evidence that employees of Anaconda knew that Chapman-Dyer employees were working over and around and near the conveyor belt. Arrangements to shut down the belt while the men were working had been made but on the morning of the accident, prior to the arrival of the Chapman-Dyer crew, the belt was turned on because Anaconda decided to run ore. The decision to operate the belt was not conveyed either to Chapman-Dyer personnel or to an Anaconda employee whose function was to act as liaison between Chapman-Dyer and Anaconda with respect to scheduling work. The authority to tell Chapman-Dyer employees where and when they could work insofar as this job was concerned was delegated to this liaison man. Chapman-Dyer employees had to accommodate their activities to Anaconda's schedule, i.e. if Anaconda needed to run ore, it did so. Chapman-Dyer employees were required to abide by Anaconda's safety regulations. The decedent was ordered by his supervisor to work on the dust collector hood at the south end of the conveyor belt and his supervisor knew that the belt was operating.

There was no evidence as to why or by whom the safety pull-cord on the east side of the belt was tied back out of reach. An employee of Anaconda testified that sometimes the pull-cords were broken and had to be tied off until an appropriate clamp could be procured. There was testimony that the safety cord had been tied off for several days prior to the accident in question. A.R.S. § 27--313, subsec. B proscribes operations of a machine before a guard or safety device necessary for safe operations which has been removed from any machine is replaced.

Plaintiff contends that the lower court erred in giving one of the defendant's requested jury instructions without having given an additional instruction requested by the plaintiff. These instructions concerned the duty of an owner of land with respect to workmen on the premises. Defendant's response to this contention is that the subject matter was covered by other instructions (plaintiff's requested instructions Nos. 8 and 14) and therefore refusal to give plaintiff's requested instruction No. 15 was not error. We do not agree.

Plaintiff's instruction No. 14, as given, was:

'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.'

Plaintiff's requested instruction No. 15, which was refused, stated:

'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 fail to protect himself against it. or fial to protect himself against it. Such reasons 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.'

In the interest of brevity, we deem it unnecessary to set forth plaintiff's instruction No. 8 which was given since it does not relate to a landowner's duty to an invitee but only to the obligation of the employer of an independent contractor when he retains control over the manner in which the work is done.

Defendant's requested instruction No. 3, which was given, stated:

'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...