D.B. Griffin Warehouse, Inc. v. Sanders

• Decision Date: 30 May 2002
• Docket Number: No. 01-716.,01-716.
• Citation: 76 S.W.3d 254,349 Ark. 94
• Parties: D.B. GRIFFIN WAREHOUSE, INC., v. Margaret SANDERS.
• Court: Arkansas Supreme Court

76 S.W.3d 254

349 Ark. 94

D.B. GRIFFIN WAREHOUSE, INC., v. Margaret SANDERS.

No. 01-716.

Supreme Court of Arkansas.

May 30, 2002.

Daggett, Donovan, Perry & Flowers, PLLC, by: Jesse B. Daggett, Marianna; and Friday, Eldredge & Clark, by: Robert S. Shafer and William A. Waddell, Jr., Little Rock, for appellant.

Wilson, Valley & Etherly, by: E. Dion Wilson, Helena, for appellee.

JIM HANNAH, Justice.

Appellant D.B. Griffin Warehouse, Inc. (Griffin), appeals a Phillips County jury verdict awarding Appellee Margaret Sanders (Margaret), individually and as administratrix of the estate of Charles Sanders (Charles), deceased, $1.5 million in damages in a wrongful-death lawsuit for Charles's death when he fell through a skylight while painting Griffin's warehouse roof in October 1991. An appeal from the first trial in this case was before this court in D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999) ("Griffin I"), in which the jury awarded damages totaling $488,958. We reversed and remanded finding that the trial court erred in failing to direct a verdict in Griffin's favor that Delta Hardware and Lumber Company (Delta), the company hired by Griffin to perform the painting work on Griffin's warehouse roof and for whom Charles worked, was an independent contractor. Upon reversal and remand for a new trial, we limited the remaining issue to Griffin's liability to Charles as an employee of an independent contractor. This appeal arises from the second trial in this case.

After Margaret received workers' compensation death benefits from Delta's workers' compensation carrier, she brought an action against Griffin for wrongful death, alleging that Griffin had breached specified duties of ordinary care, that it failed to provide certain safety devices that would have prevented his fall, and that it failed to provide him with a safe working environment. As noted, the first trial in May 1997 ended in a jury verdict in Margaret's favor, but this court reversed and remanded the matter for a new trial due to the trial court's failure to grant Griffin's motion for summary judgment on the issue of Delta's status as an independent contractor. Although we discussed and provided for the trial court Griffin's duties to Charles, we did not rule on those issues, and specifically noted that the only issue on which the court ruled was the issue of Delta's status as an independent contractor.

After remand, the parties prepared for a second trial. On July 24, 2000, Margaret filed a motion to exclude the testimony of John Stiles and Alan Anderson, Griffin's professional structural engineers who did not testify at the first trial. At the first trial, Griffin's expert witness, William Flowers, a building contractor whom Griffin engaged after being surprised by plaintiff's witness Odell Davis's trial testimony that there was a "bend" in the roof after Charles fell, testified as to the structural soundness of the building. On retrial, however, Griffin engaged the services of Stiles and Anderson to testify as to the structural soundness of the building and, specifically, to the condition of the skylight and surrounding metal roof. Margaret argued in her motion that under the Arkansas Rules of Evidence and case law allowing for the admissibility of evidence, Stiles's and Anderson's testimony given at their October 19, 1999, depositions did not rise to the level of expert testimony as their methodology and lack of prior expert designation rendered their testimony unreliable. Margaret argued that Stiles and Anderson did not base their findings on any particular accepted methodology or science, and questioned whether this rendered it "junk science." Furthermore, Margaret argued that these engineers did not examine the building and skylight area until July 8, 1999, and that eight years had passed from the date of the accident, making any decision on their part unreliable. Finally, Margaret argued that we determined in Griffin I that Occupational Safety and Health Inspector Edgar Reed's testimony indicating that there was "dry rot" around the skylight was "relevant, credible, and competent," and that this is now law of the case.

On August 2, 2000, Griffin responded to the motion to exclude Stiles's and Anderson's testimony. Griffin argued that Stiles and Anderson qualify as experts in the field of structural engineering due to their education and training, both having passed the professional-engineering examination and having worked nearly their entire careers for metal-building manufacturers or in industries utilizing metal buildings. Griffin argued that total preclusion of their testimony would be overly broad, especially considering the plaintiff cannot know what questions will be asked of Griffin's experts at trial. Finally, Griffin argued that the issue at trial was whether the roof was defective, and Griffin should be allowed to present expert testimony that it was not.

This motion was heard on the first day of trial, November 27, 2000. After hearing arguments, the court granted Margaret's motion to exclude Stiles's and Anderson's testimony. Although the court quoted substantial case law on the admission and exclusion of expert testimony and evidence, the court only provided two reasons to support the exclusion of the testimony. First, the court excluded this testimony due to the remoteness in time from the accident in 1991 to Stiles's and Anderson's inspection of the warehouse in 1999. Second, the trial court, relying on one of three considerations we noted in Farm Bureau Mutual Insurance Company v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), in which we quoted Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991), determined that the admission of this evidence would overwhelm, confuse, and mislead the jury.

Margaret presented her case by calling seven witnesses. She first called David Griffin, owner of D.B. Griffin Warehouse, Inc. He testified that he bought the building in 1989, but that he actually only handled the money involved in the cotton-storage business. He testified that his managers, General Manager Gary Inman and Warehouse Manager Robert Manning, handled the day-to-day activity at the warehouse. He testified that he directed Inman to find a contractor to get the roof painted. He testified on cross-examination that he never saw any pockets of water in the insulation to indicate that the roof ever leaked or that any of the skylights were broken or defective. Finally, he testified that after the accident in 1991, he did not authorize any major repairs of the roof, but that he did authorize the temporary repair with a piece of metal roofing to the hole where the skylight was located.

Manning testified next that he inspected the roof prior to getting bids for the painting contract. Manning, who weighed approximately 290 pounds when he inspected the roof in 1991, testified that he walked the entire length of the roof across the purlins, or steel support beams, and the unsupported tin roofing sections. He viewed the skylights and noted that none were broken or leaking, and he also noted that he did not see any damage around the skylights. Manning also testified that after the accident, he again walked on the roof, and created a temporary repair over the hole. He indicated that he put a piece of tin underneath the open area, secured it with a few screws to the existing pieces of tin, and placed some bricks on top to keep it from blowing away. He indicated that he did not tighten the bolts to make the tin and the open area as close as possible, but rather just put the tin in place to cover the hole, knowing that it would probably leak. On cross-examination, he indicated that the skylight material was affixed to a purlin on either end.

Next, Inman testified that the only connection he had to the warehouse and the painting project occurred when Griffin told him to find a contractor to paint the roof, and Inman hired Delta. He testified that it never came to his knowledge that the warehouse had a leak, defect, or other problem, other than it needed painting.

Following Inman's testimony, Griffin's attorney again raised the issue of the exclusion of its experts's testimony. Griffin's counsel argued that his experts would have testified about how the skylight was connected to the purlins, and that the experts had reviewed the Metal Building Manufacturers Code and found that the building was built according to code. Because Margaret's attorney attempted to imply that the purlins were not connected to the sides of the lights, and that this somehow was a defect in the building plans, Griffin's counsel indicated that the experts would testify that the building was built to the standard of the industry. Margaret's attorney responded that Margaret planned to present testimony from Gary Carpenter that it was standard practice to bolt the skylight from purlin to purlin, and this particular skylight was only connected on the ends. The trial court again excluded the experts from testifying, based on the same reasons as before.

Odell Davis Jr. testified next. Davis was one of Charles's co-workers who was on the roof at the time of the accident. Davis testified that although no one from Griffin advised him personally of any dangers regarding the building or the job, Charles himself told them not to step on the skylights. He testified that they were on the roof for only about ten to fifteen minutes before Charles fell, and that he did not inspect the skylight or the hole after the accident that day. He testified that several days after the accident, he and some other workers went back on the roof to cover the hole with some plastic, and that the roof had "soft spots." He said that when he put the plastic over the hole, he was laying on his stomach, and that it appeared to him that the tin had bent on one side of the hole. On cross-examination, Davis testified that his work group had painted another part of the roof...