Daniel Const. Co. v. Holden

• Decision Date: 18 June 1979
• Docket Number: No. 2,No. 79-17,79-17,2
• Citation: 585 S.W.2d 6,266 Ark. 43
• Parties: DANIEL CONSTRUCTION COMPANY, Appellant, v. Johnnie HOLDEN, Appellee
• Court: Arkansas Supreme Court

Page 6

585 S.W.2d 6

266 Ark. 43

DANIEL CONSTRUCTION COMPANY, Appellant, v. Johnnie HOLDEN, Appellee.

No. 79-17.

Supreme Court of Arkansas, Division No. 2.

June 18, 1979.

Rehearing Denied Sept. 4, 1979.

Laser, Sharp, Haley, Young & Huckabay, P. A., Little Rock, for appellant.

Stuart C. Vess, North Little Rock, Bob Dawson, Sherwood, for appellee.

FOGLEMAN, Justice.

Appellant Daniel Construction Company seeks a reversal of a judgment for damages in the amount of $38,500 in favor of appellee Johnnie Holden, based on accidental injuries suffered by Holden on the job site during construction of the Forest Heights Apartments. Appellant was the general contractor for the construction. Holden was regularly employed as a plasterer's helper by John Purnell, a plastering contractor, who, in a joint venture with Carr Plastering Company, had subcontracted the plastering work in the apartment complex. Appellant contends that the trial court erred in refusing to grant its motion for a directed verdict. We agree and reverse the judgment.

Holden's primary duties consisted of operating a mortar mixer. His work day began at 7:30 a. m. and ended at 4:00 p. m. All the plastering work was outside the building. There was testimony that some of the subcontractor's equipment was stored inside the building at the end of the day's work and that the employees of the subcontractor would sometimes go inside the building to get blocks of wood or scrap lumber to support or repair the scaffolding used in connection with the plastering. On occasion, Holden would take a change of clothing when he went to work and, at the end of the work day, change his clothes. He estimated that he did this about three times per month. He was the only one of the subcontractor's employees who changed clothes at the jobsite. The work he did caused him to get unusually dirty.

On the morning of November 6, 1973, Holden drove his wife's car to the jobsite. He was to pick up his daughter after his work day was over. He brought a change of clothing with him to the jobsite, so he could avoid getting plaster from his work clothes on the nylon automobile seat covers. When Holden's work day ended, he placed the water hose he had been using in the plaster work, inside the building in a nearby vacant room, so it would not be run over by machines on the premises, as he customarily did. He then went to his wife's car, obtained the clean clothing he had left there and then returned to the building. He intended to go into the same room where he had placed the hose, but he heard some people talking in the building and, although he did not know whether some of them were women or not, he thought they might have been, and went into another room, which was unlighted, and began changing his clothes. As he did so, something fell from his pocket and he took a step backward. Thinking that it was his pocket knife that had dropped to the floor, he began to feel for it and fell through an open, unguarded stairwell to the concrete floor of the garage, one story below the room in which Holden was changing his clothes. As a result, Holden sustained a fracture of the clavicle and other injuries for which he underwent orthopedic surgery.

Holden brought suit against appellant, alleging that the failure of the general contractor to place barricades around the open stairwell was the proximate cause of his injury. Appellant contended that Holden was a bare licensee on the property and that it was not liable because any negligence on its part was not wilful and wanton conduct. Appellant also pleaded that Holden's own negligence was a proximate cause of his injuries and that he had assumed any risk involved. Appellant's motion for a directed verdict was denied. The principal ground for reversal urged by appellant is its contention that the evidence established that Holden was a bare licensee and that there was no substantial evidence of wilful and wanton misconduct and the denial of its motion for a directed verdict was error. We agree.

The apartment building involved consisted of four levels, the lowest of which was the garage. The stairwell was located in the northern part of the building. The dimensions of the stairwell opening were 10 feet 41/2 inches by 7 feet 11 inches. The distance between the door from the hallway to the stairwell and the stairwell opening itself was about 4 feet. This intervening area was floored. The only entrance to the stairwell was the door from the hall. There was no window in the stairwell.

Viewing the evidence in the light most favorable to appellee, we find no substantial evidence that appellee was a business invitee or that appellant was guilty of wilful and wanton misconduct.

This incident occurred on November 6, 1973. It was the practice of the subcontractor to let its employees quit work 15 minutes before the quitting time of 4:00 p. m. to clean up, and change clothes if they liked, by agreement with the union representing them. On the day he was injured the appellee worked until 3:50 p. m. All the other employees of the subcontractor had left. Holden testified that the room was completely dark, but that if there had been a scaffold around the opening, he wouldn't have fallen. The stairwell was on the north end of the building. The plasterers had commenced their work at the extreme north end of the building and worked toward the south. None of their work was in the stairwell.

John Purnell, who was one of the joint venturers for whom Holden was working, testified that it was customary for his employees to change clothes inside a building on which they were working on every job he had been on. He said that Holden always put the hose in a room near his work.

It was shown that OSHA regulations require that all floor openings be guarded by a toe board or cover or by railing on all exposed sides, except at entrances to stairwells. A safety...