Cooper v. Metropolitan Government of Nashville and Davidson County
| Decision Date | 15 October 1981 |
| Citation | 628 S.W.2d 30 |
| Parties | George W. COOPER, III, Administrator of the Estate of Berry Wesley Cooper, Plaintiff-Appellant, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, et al., Defendants-Appellees. |
| Court | Tennessee Court of Appeals |
Jordan Stokes, III, Nashville, for plaintiff-appellant.
David T. Hooper, Gracey, Maddin, Cowan & Bird, Harry Mittwede, Nashville, for defendants-appellees.
The issue in this case involves a question of the duty of care owed by a contracting party (employer) to an employee of an independent contractor where the work contracted out is allegedly dangerous. The Trial Court granted summary judgment for the employer and dismissed the cause. We affirm.
The complaint in this case alleged that the appellant is the administrator of the estate of his son, Barry Wesley Cooper, who was electrocuted while working on a job for Queen's Tree Surgery, Inc. on July 29, 1977. Queen's was operating under a contract with the Electric Power Board of the Metropolitan Government of Nashville and Davidson County (Nashville Electric Service) to perform "tree trimming, clearing of shrubbery, and all other kinds of growing matter" from the lines and equipment of Nashville Electric Service in various locations within its service area.
The complaint alleges that on the date in question a crew from Queen's was trimming trees along Nashville Electric Service's high-voltage power lines on the west side of Franklin Road in Nashville, a short distance south of Caldwell Lane. Barry Wesley Cooper's job was to collect the tree branches as they fell to the ground and feed them into a chipping machine. The trimming was done by a workman in a fiber glass bucket suspended at the end of a crane or boom mounted on a truck. In changing the position of the bucket, the boom or crane came in contact with the high-voltage power line, thereby charging the boom and truck with the full voltage of the line. Barry Wesley Cooper touched the truck and was almost instantly killed by electrocution.
The complaint further alleges that the boom and truck were designed so as to insulate the truck from electrically charged wires that might come in contact with the boom but that in some cases the insulating devices had been removed and in others they had been allowed to deteriorate and their effectiveness had been dangerously lowered by the accumulation of dirt, leaves and debris in and around the upper and lower portions of the boom.
The basis for liability of Nashville Electric Service is alleged in Paragraph 22 of the complaint:
Defendant Nashville Electric Service failed to exercise the care resting upon it to ensure its contractor was a proper person to perform an admittedly hazardous and dangerous work and that its equipment was suitable and reasonably safe for the work around the energized power lines of said Service. Nashville Electric Service also failed to exercise due care to see that the work was being performed in a reasonably safe manner and failed to insist that its contractor have its equipment electrically tested although said Service has many items of equipment of similar nature which it periodically tests and maintains in first class condition, and this defendant failed to give its contractor's equipment any inspection whatsoever although it was readily apparent that the equipment was dirty and in need of attention and proper maintenance. Even a most cursory visual inspection of the inside of the lower boom would have revealed that the isolator rods were missing.
In its answer Nashville Electric Service denied that it had the right or duty to dictate to its independent contractor the type, condition, or nature of the equipment the contractor used. Nashville Electric Service further denied that it had the right or duty to inspect the equipment belonging to its independent contractor.
Nashville Electric Service subsequently moved for summary judgment. Both sides filed affidavits which showed the following essential facts:
1. Nashville Electric Service contracted with five tree trimming services for work in various parts of its service area. Queen's was one of the contractors used.
2. The work in question was being performed under a written contract. Barry Wesley Cooper was an employee of Queen's.
3. Queen's had done work for the Nashville Electric Service for twenty years in a satisfactory manner.
4. The contract specifically removed from Nashville Electric Service the right to "direct or control the manner, means and method by which the work shall be accomplished."
5. The contract acknowledged that Queen's was "apprised of, conscious of and understands the imminent danger inherent in the work required" and accepted on behalf of Queen's the "duty and sole responsibility to notify and inform its personnel, employees and subcontractors and to keep them informed."
6. Nashville Electric Service did not inspect nor test any of Queen's equipment, nor did it monitor the work done by Queen's to see that it was performed in a safe manner.
The Trial Judge granted summary judgment for Nashville Electric Service and dismissed the action. From that decision an appeal has been perfected.
For the first ground of liability it is alleged that Nashville Electric Service failed to fulfill its duty of care to select a competent contractor to perform the work contemplated by the contract. As to this issue we are of the opinion that the uncontroverted facts do not disclose any basis for this conclusion. To the contrary, the facts show that Queen's had been performing the same or similar work for Nashville Electric Service for twenty years, apparently without incident. Therefore we conclude that summary judgment was proper on that allegation of negligence.
As to the second ground the complaint alleges that Nashville Electric Service had a duty to see that the work was done in a safe manner and to see that the contractor used equipment which was safe...
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