Clark v. Floyd

• Decision Date: 02 October 1987
• Citation: 514 So.2d 1309
• Parties: C.D. CLARK, Coby Clark, and Gerald McLeod v. Kenneth FLOYD. CONTINENTAL INSURANCE COMPANIES v. Kenneth FLOYD. 85-305, 85-315.
• Court: Alabama Supreme Court

Page 1309

514 So.2d 1309

C.D. CLARK, Coby Clark, and Gerald McLeod v. Kenneth FLOYD.

CONTINENTAL INSURANCE COMPANIES v. Kenneth FLOYD.

85-305, 85-315.

Supreme Court of Alabama.

Oct. 2, 1987.

James E. Williams of Melton & Espy, Montgomery, for appellants C.D. Clark, Coby Clark, and Gerald McLeod.

Donald C. Radcliff of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves Mobile, for appellant Continental Ins. Companies.

Frank J. Tipler, Jr., of Tipler and Tipler, Andalusia, for appellee.

BEATTY, Justice.

These are consolidated appeals by defendants C.D. Clark, Coby Clark, Gerald McLeod, and the Continental Insurance Companies ("Continental") from jury verdicts based on personal injuries of the plaintiff, Kenneth Floyd, that allegedly resulted from negligent inspection and coemployee liability. We reverse and remand.

The record in this case established the following facts:

Plaintiff Floyd was an employee of Clark Construction Company. He began working with the company as a laborer on a jobsite near Andalusia in April or May 1982. After approximately three months, Clark Construction Company sent him to a Tuscaloosa jobsite, where he worked for an additional month. In Tuscaloosa, he performed the job of a "leads man."

The duties of a leads man pertain to the installation of pilings for bridges and overpasses. When a piling is to be driven, it is placed by a crane into a steel guide called a "leads," which holds the piling in a vertical position while the piling is driven into the ground. The leads has welded to its back a ladder that the leads man must climb whenever a piling is hoisted by a crane into the leads. Having positioned the piling into the leads, the leads man helps the crane operator position a "follow block" onto the top of the piling. A hydraulic hammer strikes this follow block and drives the piling into the ground.

Once the follow block is lowered onto the piling, the leads man must disconnect the cable from the piling and pull the cable downward until it reaches the ground, so that another workman can tie it off out of the way of the crane and the hammer. Pursuant to the standard operating procedure, once he has completed his task, the leads man climbs down the ladder 40 feet to the ground.

While at the Andalusia jobsite, plaintiff Floyd had watched the operation of another leads man on two occasions. In both instances, the leads man returned to the ground by way of the ladder.

At the Tuscaloosa jobsite, Floyd performed the job of leads man from 20 to 40 times. In about half of these operations, Floyd climbed up the ladder, untied the cable, and then climbed down the ladder. However, during the other half of the operations, Floyd "rode" the cable down to the ground, i.e., holding onto the cable, he stepped off the piling and the crane operator lowered him to the ground. Floyd never saw any other employee of the company ride the cable down to the ground, nor did anyone ever instruct him as to the propriety of such a procedure. On the other hand, Floyd contends that no one in Tuscaloosa ever stopped him or instructed him to refrain from this practice.

After his service in Tuscaloosa, Floyd was sent by Clark Construction Company to Pickens County on a bridge construction job, where he worked with defendants Coby Clark and Gerald McLeod. Coby Clark was the crane operator and Gerald McLeod was the job superintendent. Another employee, Willie Taylor, who is not a party to this action, was also a member of this crew. The final person at the Pickens County jobsite was Johnny Franks, a project inspector for the Alabama Highway Department, who was there to verify that the job was carried out according to the state's specifications.

The injuries to Floyd, which resulted in this action, occurred on September 7, 1982, Floyd's first day on the site in Pickens County. Willie Taylor was the leads man for the first piling; Floyd was the leads man on the second and third pilings. On the first and second pilings, both Taylor and Floyd climbed down the ladder after completing their tasks.

During Floyd's second operation as a leads man that morning (the crew's third piling operation), Floyd disconnected the cable from the piling and looked down at McLeod, who was standing on the ground at the bottom of the leads and told McLeod that he was going to ride the cable down. McLeod told Floyd not to ride the cable down. Coby Clark could not hear McLeod and Floyd's conversation from his seat inside the cab of the crane. Floyd then nodded to Clark, who nodded back. Clutching the cable hook to his chest, the plaintiff stepped off the piling.

The plaintiff expected the line to be taut and that he would be suspended in the air until Clark lowered him to the ground. Instead, the cable had from one to four feet of slack in it. When he stepped off the leads, Floyd immediately dropped the distance of this slack. Once the slack was pulled out of the cable, it jerked, causing Floyd to lose his grip and to fall approximately 30 feet to the ground, resulting in his injuries.

The plaintiff testified that he did not notice the slack in the cable, even though his view of the cable and the drum on which it was wound was unobstructed. He also admitted that he knew he was 40 feet above the ground and had grease on his hands when he stepped off the piling.

Floyd had never ridden the cable down with this crane operator, nor had Clark been at the Tuscaloosa site when the plaintiff had purportedly ridden the cable down to the ground. Nevertheless, Floyd contended that it was generally well-known in the company that he would ride the cable down from the piling.

Floyd also testified that sometime that morning, prior to the accident, he had told Clark that he was going to ride the cable down from the top of the leads, to which, according to the plaintiff, Clark did not object. Coby Clark, in his testimony, denied that this conversation ever took place. On cross-examination, the plaintiff admitted that he had assumed that Clark knew how to let him down with the cable and that he had neither asked Clark if he knew how to do it nor offered him any instructions about it.

Coby Clark testified that he created from one to four feet of slack in the line before the plaintiff had disconnected the cable from the piling. Clark stated that the slack made it easier for Floyd to disconnect the cable. Clark also testified that he had applied a brake onto the cable in order to prevent any further release of the line.

Billy Biles, an expert witness called by the defendants, testified that Coby Clark's actions in applying the brake to this line were in accord with industry standards. His testimony, however, did not directly address the propriety of Clark's creating the slack in the line.

Floyd's allegations against Continental averred that the insurance company:

"maintained the worker's compensation liability insurance coverage on said company and that Continental maintained said insurance coverage for a considerable period of time prior to September 7, 1982; that pursuant to representations contained in said defendants' advertising and promotion of its worker's compensation insurance and in compliance with the terms of its worker's compensation insurance and in compliance with the terms of its insurance policy covering said company, Continental undertook to inspect said work site in order to render a safety engineering service to said company; that one or more of Continental's employees, acting within the line and scope of his or their employment for Continental, on one or more occasions, prior to September 7, 1982, entered said job site and area for purposes of inspection and safety engineering; but that on said occasion or occasions, negligently failed to perform said inspection and safety engineering service properly; that Continental negligently failed to advise plaintiff's employer to correct an unsafe and dangerous condition, to-wit: there was no headache ball on crane and grease was on chain of crane, and that Continental's employee or employees either knew of the unsafe and dangerous condition and practices or should have known it by the exercise of reasonable digligence."

Allegations of damage followed.

Plaintiff's allegations against C.D. Clark, president of Clark Construction Company, were these:

"Plaintiff avers that defendant, C.D. Clark, then and there and for several months prior thereto was an employee of Clark Construction Company and was charged with the responsibility of the works, ways, machinery and safety precautions involved at said job site.

"Plaintiff further avers that said defendant had on occasion prior to the injury of the plaintiff been apprised that there was no headache ball on said crane and that there was grease on the chain and that the crane was in a dangerous condition, and that despite said knowledge on the part of said defendant, he negligently and/or wantonly failed to properly and adequately warn, instruct or otherwise correct the dangerous situation so as to prevent the dangerous and unsafe condition as aforesaid, and as a proximate result and consequence of the negligent and/or wanton conduct of the said defendant, plaintiff was injured and damaged...."

Plaintiff adopted these allegations of negligence against Coby Clark, the crane operator, and Gerald McLeod, the job superintendent who supervised plaintiff Floyd and Coby Clark.

The defendants answered with general denials and averments of contributory negligence and assumption of risk. The case was tried to a jury. After plaintiff rested, each defendant moved for a directed verdict, but the trial court denied these motions. Like motions were made and denied at the close of all the evidence. The jury returned a verdict in favor of plaintiff against all defendants in the amount of $100,000, and judgment was entered thereon. All defendants subsequently made motions for a new trial or judgment notwithstanding the verdict ("J.N.O.V."), which...