Colvin v. Red Steel Co.

• Citation: 682 S.W.2d 243,28 Tex.Sup.Ct.J. 153
• Decision Date: 12 December 1984
• Docket Number: No. C-3167,C-3167
• Parties: Larry Joe COLVIN, Petitioner, v. RED STEEL COMPANY, Respondents.
• Court: Texas Supreme Court

Page 243

682 S.W.2d 243

Larry Joe COLVIN, Petitioner, v. RED STEEL COMPANY, Respondents.

No. C-3167.

Supreme Court of Texas.

Dec. 12, 1984.

Jack B. Cowley, Tommy K. Davis, Dallas, for petitioner.

Russell W. Schell, Dallas, for respondent.

WALLACE, Justice.

This is a personal injury case based upon allegations of negligence and strict liability. Larry Joe Colvin (Colvin) was an ironworker employed by D.R. Smith, a steel erection company. Colvin was working on a building being constructed by Robert E. McKee, Inc. (McKee), the general contractor. Red Steel Company (Red Steel) was the fabricator of the steel trusses and purlins used in the building. At the close of evidence, the trial court rendered an instructed verdict for McKee and Red Steel. McKee settled during appeal to the court of appeals. The court of appeals affirmed the judgment of the trial court. 671 S.W.2d 556. We affirm the judgment of the court of appeals.

The building in question was constructed with concrete columns to which were attached supporting steel trusses. Steel purlins were to be laid along the top of and welded to the trusses. The purlins, used only as spacer material, separated the trusses from the roof. The architect's specifications required 30 purlins, measuring 49 feet 11 3/4 inches in length and weighing approximately 660 pounds. Red Steel supplied seven purlins of the specified length but filled the rest of the order with shorter pieces. Although McKee and the architect accepted the shorter pieces which were used in the building, neither one authorized Red Steel to change the length of the purlins.

While atop one of the concrete columns, Colvin was attaching a truss to the column. In an attempt to raise himself to an upright position, he reached overhead and grasped a purlin laying atop another truss already in place. The purlin came off the truss and Colvin fell 16 feet to the concrete floor. The purlin which Colvin grasped was eight

feet long and weighed approximately 88 pounds. The issues are whether there is some evidence that Red Steel was negligent in supplying the shorter purlins or whether Red Steel was strictly liable for supplying the shorter purlins.

NEGLIGENCE

To determine whether it was proper for the trial court to instruct a verdict for Red Steel, we must view the evidence in the light most favorable to Colvin. We must indulge against the instruction every inference that properly may be drawn from the evidence, and if the record reflects any testimony of probative force in favor of Colvin, we must hold the instruction improper. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943).

To sustain a cause of action for negligence it is necessary to produce evidence of a duty, a breach of that duty, proximate cause and damage. Fort Worth & Denver City Ry. Co. v. Rogers, 62 S.W.2d 151 (Tex.Civ.App.--El Paso 1933, writ ref'd). The duty Red Steel owed Colvin was to act as a reasonable prudent person would act under the same or similar circumstances regarding any reasonably foreseeable risk. Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943).

Red Steel's cutting orders, which became part of the contract with McKee, complied with the architect's specifications requiring the purlins to be 49 feet 11 3/4 inches in length. There was testimony that it would take two men to move a purlin of the specified length, however, the eight foot purlin was easily moved by Colvin alone. Colvin testified that when the ironworkers worked with the shorter purlins, they had to lay them across two trusses "... so they wouldn't fall off of or somebody would come and kick them off." He further testified that, "When we put the short purlins [up], we always laid them down on their side like this where they wouldn't get kicked over or knocked over and fall off or anything." Colvin contends there is some evidence that the shorter purlins created a more dangerous condition in the work place than the longer ones. Although the record does not disclose the number, there is evidence that the architect's plans specify a number of shorter purlins in addition to the 30 longer ones mentioned above.

Colvin's expert, Mr. Zetterlund, a professional structural engineer, testified that the standards of the Associated General Contractors of America, Inc. require that any steel which is raised in place on a...