Davenport v. Amax Nickel, Inc.

• Decision Date: 11 October 1990
• Docket Number: No. 90-CA-0289,90-CA-0289
• Citation: 569 So.2d 23
• Parties: Robert DAVENPORT v. AMAX NICKEL, INC., et al. 569 So.2d 23
• Court: Court of Appeal of Louisiana — District of US

Page 23

569 So.2d 23

Robert DAVENPORT v. AMAX NICKEL, INC., et al.

No. 90-CA-0289.

569 So.2d 23

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 11, 1990.

Writ Denied Jan. 4, 1991.

Jeffrey M. Boudreaux, Weigand, Weigand & Meyer, Houma, for plaintiff/appellant.

Brian J. Waid, Bubrig and Waid, Buras, for MAB Intern., Inc., defendant/appellant.

Joseph B. Guilbeau, Dean A. Sutherland, Sutherland, Juge, Horack & Dwyer, New Orleans, for defendants/appellees.

Before GARRISON, BARRY and CIACCIO, JJ.

BARRY, Judge.

Robert Davenport, a welder, was injured when scaffolding collapsed at the Amax Nickel plant in Braithwaite. Davenport sued Amax and John Buckhannon, an Amax supervisor, alleging negligence, and Amax based on strict liability. Amax filed a third party claim against the contractor, MAB International, Inc., based on an indemnification contract. MAB filed an exception of no cause of action, claiming that indemnification would not accrue unless Amax was found liable to Davenport. The trial court granted Amax's and Buckhannon's motion for summary judgment and did not rule on MAB's exception of no cause of action. Davenport appeals the dismissal of his suit. MAB acknowledges that its exception is moot if this Court affirms the summary judgment which dismisses Amax and Buckhannon; but MAB argues that its exception should be granted if this Court reverses the summary judgment.

FACTS

Davenport was injured while working on the conversion of the Amax plant from a nickel refinery to a metal recovery facility. Three puristat tanks were being installed at the plant. A puristat is a large conical vessel 35 to 40 feet in height supported by eight legs which join the tank approximately 20 feet from the ground.

In March, 1986 Amax retained MAB, an independent contractor, to design, fabricate, ship and install the puristats in final working condition within a specified time period. Amax was to supply access to water and power and a crane to lift the vessels into place. MAB entered into an oral agreement with George Bezmalinovic, owner and operator of Bez, Inc., whereby Bez would erect and install the puristat vessels and provide all necessary labor.

The Amax contract required MAB and its subcontractors to comply with OSHA regulations and Amax safety rules. Amax held safety indoctrination classes for MAB and Bez employees who were to enforce the safety regulations.

In order to weld the vessels into place, scaffolding was built around each tank at approximately 20 feet from the ground. J.D. Ewing, Bez foreman, designed the scaffolding and supervised its construction. The scaffolding was constructed by welding angle irons at right angles to the tank. A second angle iron was welded to the tank and to the outer end of the first angle iron, bracing it at a 45 degree angle. That design is referred to as a triangle brace. Boards were laid between the triangle braces and tied on with ropes to form the scaffolding. Ewing testified that the triangle braces were welded on three sides at all joints. He inspected the welds on the braces and performed most of the welding. That type of scaffolding is a common design which complies with OSHA regulations. After the scaffolding was completed, it was discovered that the boards supplied by MAB were too flexible and welders standing on the boards were not able to obtain good welds. The original boards were replaced with rigid boards from the Amax storeroom. Amax did not have a contractual right or obligation to inspect the scaffolding, and never did so.

Amax had no safety rules regarding scaffolding construction. Amax's safety rules require the use of a safety belt any time a worker is more than eight feet off the ground. Workers must wear proper equipment in the work area, i.e., hard-toed shoes, hard hats, long sleeves and safety glasses. All workers entering the plant were required to go through a safety inspection and were not allowed into the work area without appropriate safety equipment. Amax supplied equipment such as safety glasses and hard hats when workmen reported without the equipment.

MAB frequently did not have an on-site representative although Ewing was at the plant every day. As Bez's foreman, Ewing was responsible for ensuring that all Bez employees complied with the safety rules. The regular procedure was for Amax personnel to inspect the job and contact MAB's office in Houston if changes were desired. Occasionally an Amax supervisor spoke with Ewing if there was a safety violation or design problem. Amax personnel insisted that Bez welders use safety belts.

On the day of the accident Davenport was welding on the inside of a tank leg. To reach that area from the regular scaffolding it was necessary to stretch around to the inside of the leg. The other welders were able to accomplish that while standing on the regular scaffolding. Davenport decided it would be easier to make the interior leg welds if he stood on a small scaffold made of boards placed on single angle irons welded to the inside of the tank leg. He fell when a weld holding the angle irons broke, causing this scaffold to collapse. Davenport's safety belt was on but was not hooked to the tank. The belt might have been attached to the scaffold which collapsed.

An examination revealed that the angle iron which broke had not been braced or properly welded to the leg; instead it was merely "tack" or "spot" welded. A tack weld is a temporary join used by welders to hold pieces of metal in place until permanent welds are made. It is not intended to support a man's weight.

All parties agree that the angle iron which broke off had been tack welded to the tank leg by a Bez employee.

VALIDITY OF JUDGMENT ON APPEAL

We note a matter not addressed by the parties. The trial judge substantively amended the original judgment without a motion for new trial. The original judgment (November 13, 1989) granted summary judgment in favor of Amax Nickel, Inc. but did not include defendant John Buckhannon. On November 17, 1989 an amended judgment dismissed the suit against Buckhannon. On November 30, 1989 Davenport appealed both the November 13 and the November 17 judgments.

La.C.C.P.Art. 1951 provides:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:

(1) To alter the phraseology of the judgment, but not the substance; or

(2) To correct errors of calculation.

The addition of a party to a judgment is a change of substance and not of phraseology which can only be accomplished by motion for a new trial or on appeal. Teague v. Barnes, 519 So.2d 817 (La.App. 5th Cir.1988). The usual remedy of the appellate court is to vacate the amended judgment and reinstate the original judgment. Teague, supra. Schexnayder v. Schexnayder, 503 So.2d 104 (La.App. 5th Cir.1987).

La.C.C.P.Art. 2164 permits an appellate court to "render any judgment which is just, legal and proper upon the record on appeal." Here, although the parties neither moved for a new trial nor questioned the amended judgment in this Court, plaintiff appealed both judgments.

The record is complete and we deem it just and proper to vacate the amended judgment and reinstate the original judgment, and to amend the original judgment to include summary judgment in favor of defendant John Buckhannon.

STANDARD FOR SUMMARY JUDGMENT

The purpose of a summary judgment motion is to determine prior to trial whether a genuine issue of material fact is in dispute. Industrial Sand and Abrasives v. Louisville & Nashville Railroad Co., 427 So.2d 1152 (La.1983). A party may move for summary judgment at any time. The motion should be granted "if the pleadings, depositions, answers to interrogoratories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law." La.C.C.P.Art. 966; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Ricker v. Wieleman, 464 So.2d 891 (La.App. 4th Cir.1985). Summary judgment is warranted only when reasonable minds must inevitably conclude that on the facts before the court the mover is entitled to summary judgment as a matter of law. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976); Ricker, supra. The burden is on the mover to show that there is no genuine issue of material fact in dispute. Any reasonable doubt as to the existence of a genuine issue of material fact must be resolved against the mover. Industrial Sand and Abrasives, supra; Ricker, supra.

The pleadings, affidavits, and documents of the mover must be scrutinized closely, while those of the opponent to the motion are to be treated indulgently. The mover must meet a strict standard of showing that the truth is clear and that any real doubt as to the existence of a genuine issue of material fact has been excluded. Industrial Sand and Abrasives, supra; Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981).

Nevertheless, despite the presence of disputed facts, summary judgment will be granted as a matter of law if the contested facts present no legal issues. Allegations without substance will not preclude summary judgment. Jones v. City of Kenner, 442 So.2d 1242 (La.App. 5th Cir.1983). Metropolitan Bank of Jefferson v. Summers, 257 So.2d 179 (La.App. 4th Cir.1972), writ refused, 261 La. 462, 259 So.2d 914 (1972).

LIABILITY OF OWNER FOR INDEPENDENT CONTRACTOR'S NEGLIGENCE

As a general rule, property owners are not liable for the negligence of an independent contractor. Factors relevant to the determination of an independent contractor relationship include the independent nature of the contractor's business, the existence of a contract to perform a specific job for a fixed price, performance of the work by the contractor's employees, the furnishing of necessary tools and materials by the contractor and...