Chance v. Dallas County, Ala.
Decision Date | 07 September 1984 |
Citation | 456 So.2d 295 |
Parties | E. Roy CHANCE v. DALLAS COUNTY, ALABAMA, et al. 83-532. |
Court | Alabama Supreme Court |
John E. Pilcher of Pilcher & Pilcher, Selma, for appellant.
J. Garrison Thompson of Pitts, Pitts & Thompson and Blackwell & Keith, Selma, for appellees.
Plaintiff/Appellant E. Roy Chance sued Defendants/Appellees, Dallas County and two of its employees, Cecil Strickland and Tommy Craig, alleging personal injuries resulting from Defendants' negligence and/or wantonness.
Defendants answered Plaintiff's complaint, asserting: 1) Plaintiff was guilty of contributory negligence; 2) Plaintiff's injuries, if any, resulted from the negligence of his employer, Norman W. Copeland, as opposed to that of Defendants/Appellees; 3) Plaintiff assumed the risk of injury through his employment; and 4) Plaintiff's employer was an independent contractor who, through his repair contract with the County, assumed the risk of any injury inherent therein.
The trial court entered judgment upon a jury verdict in favor of Defendants. Plaintiff appeals from the denial of his motion for a new trial. We reverse and remand.
Chance's employer, Norman W. Copeland, a self-employed welder, was hired by Cecil Strickland, Dallas County Shop Foreman, to perform welding repairs on a diesel fuel tank owned by the County. The diesel tank was located inside a metal storage shed, which also contained a gasoline tank. Both storage tanks were located underground, approximately twenty to twenty-five feet apart.
Strickland informed Copeland that he (Strickland) would clean out the tank prior to Copeland's commencing his welding. Thereafter, Strickland personally cleaned the tank of debris by using approximately one gallon of gasoline as a cleaning solvent. Strickland did not notify Copeland, or anyone else, that the diesel tank had been cleaned with gasoline.
Subsequently, during a personal inspection of the diesel tank, Copeland smelled gasoline odors within the metal storage shed. According to Copeland, upon further inquiry, he was informed by Tommy Craig, the County's office clerk and parts manager, that there had never been any gasoline in the diesel tank, and that the gasoline odor came from the gasoline tank situated within the metal storage shed.
When Copeland and Chance arrived at the tank, Chance also detected gasoline fumes. Chance inquired of Copeland concerning the odor, and was told by Copeland of his conversations with Tommy Craig. In an effort to further check the diesel tank for the presence of gasoline, Copeland and Chance placed a dry mop inside the tank. They removed the mop and attempted,
unsuccessfully, to ignite it. At that point, the men commenced welding on the tank. The tank exploded, causing injuries to the Plaintiff.
Appellant frames the two issues presented thusly: whether the trial court erred 1) "in charging the jury that an employee of an independent contractor performing dangerous work, however skillfully performed, assumes the risk occasioned by the performance of such work, and, therefore, may not recover for any resulting injuries, even if wantonly inflicted"; and 2) "in charging the jury that assumption of the risk is a valid defense to wanton conduct."
In support of his alleged error No. 1, Appellant directs our attention to the following portion of the trial judge's jury instructions:
Additionally, Appellant assigns as error the action of the trial judge in giving Defendants' Charge 37:
"If you are reasonably satisfied from the evidence that the Plaintiff assumed the risk, then the Plaintiff cannot recover for any wantonness of the Defendant."
Plaintiff timely objected to both the "John Wayne" story and Charge # 37.
CONTENTIONS OF THE PARTIES
Appellant: Notwithstanding the correctness of its initial ruling, permitting the factual issue of Plaintiff's knowledge of the dangerous condition to go to the jury, the trial judge's subsequent "John Wayne" instruction, says the Appellant, was the virtual equivalent of informing the jury that, as a matter of law, the Plaintiff assumed the risk of injury by undertaking the welding job. It is not the use of the "John Wayne" hypothetical, as such, that meets with Appellant's disapproval; rather, says the Appellant, the trial court's dramatization of such an extreme example of an admitted assumption of risk situation unfairly influenced the jury to equate the "John Wayne" story with the instant case, to the exclusion of the jury's factfinding prerogative with respect to the "hidden danger" principle.
Appellees: The trial judge clearly preserved to the jury its factfinding options, say the Appellees, pointing to portions of his jury instructions immediately following the "John Wayne" story:
"Now you're getting back into what I was talking about in the three elements of assuming the risk. There must be a danger that he's aware of and he goes ahead and does it anyway. So either you've got to be aware of it or by the "[The defendants'] contention is that we, on the other hand, ... told him to come out there and do this; and that's the contentions of the parties.
exercise of reasonable diligence, should have been aware of it. That's what we're talking about here.... [Mr. Chance is saying] the county didn't warn [him] of the danger he was going into; they knew it was there and should have warned him. Now that's [his] contention.
Appellant: After properly submitting the wanton count to the jury, contends the Appellant, the trial court erred in charging the jury that its finding that Plaintiff assumed the risk of injury (if it should so find) would preclude Plaintiff's right of recovery. Appellant directs our attention to the following language in Blount Brothers Construction Company v. Rose, 274 Ala. 429, 437, 149 So.2d 821, 830 (1962):
Once a jury issue is established by the evidence on the theory of wanton conduct, says Appellant, the Blount Brothers principle is equally applicable in the instant context of a premises owner/independent contractor.
Appellees: 1
According to Appellees, because the situation in Blount Brothers, supra, as well as in other cases cited by Appellant, did not involve a "premises owner/independent contractor" dichotomy, any "general rule" regarding assumption of the risk, as no valid defense to wanton conduct, is incompatible with the facts now at issue.
Appellees bolster their support for an "exception" to the "general rule" in the "premises owner/independent contractor" situation with the following from 41 Am.Jur.2d Independent Contractors § 28 (1968):
2
Appellees summarize their contentions thusly:
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