Commonwealth Aluminum Corporation v. Krahwinkel, 2002-CA-000124-MR.
| Decision Date | 15 August 2003 |
| Docket Number | No. 2002-CA-000193-MR.,No. 2002-CA-000124-MR.,2002-CA-000124-MR.,2002-CA-000193-MR. |
| Parties | COMMONWEALTH ALUMINUM CORPORATION APPELLANT/CROSS-APPELLEE v. LEWIS F. KRAHWINKEL, JR. APPELLEE/CROSS APPELLANT. |
| Court | Kentucky Court of Appeals |
Marvin P. Nunley, Owensboro, Kentucky, BRIEF AND ORAL ARGUMENT FOR APPELLANT/CROSS-APPELLEE.
Jeanie Owen Miller, Owensboro, Kentucky, BRIEF AND ORAL ARGUMENT FOR APPELLEE/CROSS-APPELLANT.
BEFORE: DYCHE, JOHNSON, AND SCHRODER, JUDGES.
REVERSING AND REMANDING
This is an appeal and a cross-appeal from a judgment pursuant to a jury verdict in a personal injury action filed by an employee of an independent contractor against a company which hired the independent contractor to move and install a tank in the basement of the company's plant. On appeal, the company insists that it was the independent contractor's responsibility to provide for the safety of its employee at the job site and that the dangerous condition which caused the injuries was open and obvious, thus, the company hiring the property owner had no duty to the plaintiff regarding this condition. It also argues that it is entitled to be reimbursed for the workmen's compensation benefits paid to the plaintiff to preclude double recovery, since the employer agreed to not seek reimbursement for the same. On cross-appeal, the plaintiff argues that it should have gotten a negligence per se jury instruction. Upon review of the record and the applicable law, we agree with appellant that the company hiring the independent contractor had no duty to the employee of the independent contractor. Hence, the appellant had no liability in the accident. Accordingly, we reverse the judgment and remand the matter for further proceedings consistent with this opinion.
In 1996, appellee/cross-appellant, Lewis Krahwinkel, was employed by Industrial Technology ("Intec"), a mechanical contractor. In 1996, Intec was hired by Commonwealth Aluminum Corporation ("Commonwealth") to install and move a tank from the first floor of their plant through a large hole (approximately eighteen feet by eighteen feet) into the basement. In order to get the tank into the room with the hole, Intec workers had to guide the tank with lead lines across the motor room into the room with the hole. On January 24, 1996, Krahwinkel was one of the Intec workers helping to move the tank into the basement. Krahwinkel testified that after guiding the tank across the motor room and successfully lowering it into the basement, he began cleaning up the area around the hole. As Krahwinkel was walking around the outside of the hole, he slipped and fell into the hole, falling some fifteen to twenty feet onto a catwalk and then onto the concrete floor below. As a result of the fall, Krahwinkel sustained severe injuries to his right foot and knee.
Krahwinkel testified that there was no caution tape or barrels around the hole. According to Krahwinkel, he had no safety belt or harness on at the time because there was no place on which to tie off. He further testified that there was oil on the floor of the motor room which he stepped in when he was guiding the tank through that room.
On January 16, 1997, Krahwinkel filed the personal injury action herein against Commonwealth alleging that as a result of Commonwealth's negligent failure to maintain a safe workplace for Intec's installation of the tank, he suffered damages including lost wages, loss of earning capacity, medical expenses, and pain and suffering. Thereafter, an intervening complaint was filed by Intec on behalf of their workers' compensation carrier seeking to recover workers' compensation benefits paid to Krahwinkel pursuant to KRS 342.700. On March 21, 2001, Intec moved to be dismissed as a party to the litigation, citing a settlement agreement with Krahwinkel. In September of 2001, the motion was granted.
On August 6, 2001, the case was tried to a jury which ultimately entered a verdict in favor of Krahwinkel, apportioning 75% liability against Commonwealth and 25% liability against Krahwinkel. Damages were awarded as follows (not including the 25% reduction for Krahwinkel's comparative negligence): $10,000 for permanent impairment of earning capacity; $7,300 for pain and suffering; $17,671.02 for medical expenses; and $10,000 for lost wages. Commonwealth then filed a motion for a new trial which was denied. This appeal by Commonwealth and protective cross-appeal by Krahwinkel followed.
Commonwealth first argues that the trial court erred in refusing to direct a verdict in its favor because it had no duty to Krahwinkel under the circumstances of the case. Specifically, Commonwealth maintains that it owed no duty to Krahwinkel because Commonwealth had no duty to warn of known and obvious dangers on its property (the hole) and because it was Intec's responsibility, as the independent contractor, to provide for the safety of its employees.
It was undisputed that the hole which Krahwinkel fell through was constructed by Commonwealth at the time the plant was built and usually had a hatch covering it. At trial Krahwinkel presented the testimony of Herbert Bogart, an occupational safety expert, who testified that the hole should have had a temporary guardrail constructed around it to prevent any falls. He testified that this guardrail would provide fall prevention rather than simply fall restraint of a safety belt/harness. He cited OSHA regulations which would have required Commonwealth to have guardrails placed around the hole whenever the hatch was removed.
Gene Holtzman, safety administrator for Commonwealth, testified that Commonwealth requires contractors to provide their own safety equipment when performing work as independent contractors. He stated that it was the responsibility of Intec to protect its employees and see that they were provided a safe work environment, including any necessary safety equipment to prevent falls. Holtzman did admit that there was grease and oil on the floor in areas around the hole.
Trent Meyers, project manager for Commonwealth, testified that a safety manual was provided to all contractors which requires that contractors shall furnish the necessary safety equipment for the particular job. It further provides that it is the contractor's responsibility to follow safety rules and OSHA regulations. According to Meyers, Commonwealth required Intec to sign a paper indicating that it understood that it was to abide by certain safety procedures and utilize safety equipment when working at Commonwealth.
Commonwealth first cites to general premises liability law holding that the owner of property does not have a duty to warn against open and obvious dangers. Foley v. Michel Tire Co., 183 F. Supp.2d 934 (W.D.Ky. 2002); Rogers v. Professional Golfers Ass'n of Am., Ky. App., 28 S.W.3d 869 (2000). While we agree that the hole in the instant case was an open and obvious danger, according to other evidence offered by Krahwinkel, the oil on the floor, which was not open and obvious, was another contributing factor to the accident. Hence, the above-stated law would not merit a directed verdict in Commonwealth's favor.
As to Commonwealth's argument that Intec, as independent contractor, had the responsibility to provide for its own employee's safety, it has been held in Kentucky that "where an employee of an independent contractor is injured, the owner is liable only when the work done by the independent contractor is a nuisance or inherently dangerous." Grogan v. United States, 225 F. Supp. 821, 825 (W.D.Ky. 1963), affirmed in part and modified i...
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