Demarest v. TC Bateson Construction Company, 8357

Decision Date25 January 1967
Docket NumberNo. 8357,8404.,8357
Citation370 F.2d 281
PartiesCharles DEMAREST, Appellant, v. T. C. BATESON CONSTRUCTION COMPANY, a corporation, G. K. Cheves, d/b/a Cheves Construction Company, Appellees. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORP., Ltd., Appellant, v. T. C. BATESON CONSTRUCTION COMPANY, a corporation, G. K. Cheves, d/b/a Cheves Construction Company, Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Willard F. Kitts, Albuquerque, N. M. (William E. Snead, Arturo G. Ortega and Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M., with him on brief), for appellants.

Frank H. Allen, Jr., Albuquerque, N. M. (Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, N. M., with him on brief), for appellees.

Before MURRAH, Chief Judge, SETH, Circuit Judge, and DOYLE, District Judge.

MURRAH, Chief Judge.

This diversity-negligence action by an employee of a construction subcontractor against the prime contractors to recover damages for injuries suffered in a fall at the worksite presents the difficult task of rationalizing and applying the law of assumption of risk and contributory negligence as New Mexico sees it. At the close of the plaintiffs' case, the trial court directed a verdict for defendants on the ground that as a matter of law the injured plaintiff assumed the risk and was guilty of contributory negligence. This verdict also ran against the plaintiff-intervenor whose subrogation rights as workman's compensation carrier for the subcontractor-employer depended on the injured employee's case. We affirm the trial court.

Appellees Bateson Construction Company and G. K. Cheves (d/b/a Cheves Construction Company) were joint venturers and prime contractors for the construction of an FAA control center near Albuquerque, New Mexico. Appellant-Demarest was employed by the sheet metal subcontractor. Prior to the day of the fall he had worked for some time in the basement of the building; but on that fateful day he was sent to the attic area to assist in the installation of air conditioning units.

The floor of the attic was composed of a rigid decking of expanded metal mesh, suspended some 20-25 feet above the main floor. Running the length of this decking were five parallel gaps or openings, each about two feet wide and separated by uniform intervals. (In these openings the light fixtures were eventually to be placed.) Demarest complained to his foreman about the dangers posed by the openings and asked that they be covered; he also discussed them with his fellow workers and warned them to "watch out". To reach the attic Demarest crawled up a scaffold and through one of the openings. He proceeded to work, stepping back and forth across one of the openings in the process. Some 2½ to 3 hours later he fell. No one witnessed the accident, although one witness did observe him falling after he emerged from the opening. Demarest himself had no recollection of the events immediately preceding the fall and thus could not tell what caused it.

Demarest's complaint alleged that defendants had control of the premises; that they owed a duty to employees of independent subcontractors to provide a safe place to work; that the defendants installed the mesh decking, or permitted it to be installed; that they knew or should have known of the danger thereby created to workmen in the area; that they negligently failed to take reasonable precautions to guard against that danger; and that by reason of their negligence Demarest fell through one of the openings to his great injury. Defendants generally denied these allegations and asserted the affirmative defenses of assumption of risk and contributory negligence.

The case was tried on the theory alleged in the complaint that the defendant prime contractors owed the plaintiff employee of their subcontractor the duty to provide him a safe place to work and negligently breached that duty. As the case comes to us on appeal, we must assume the duty alleged and the negligent breach thereof. In this posture of the case we have no occasion to consider the nature and extent of the duty owed under New Mexico law by a prime contractor to an invitee-employee of its subcontractor, i. e. see Titan Steel Corp. v. Walton, 10 Cir., 365 F.2d 542, 546, 547.1 The only question here is the correctness of the trial court's judgment holding as a matter of law that the plaintiff assumed the risk due to the defendants' negligence and was guilty of contributory negligence.

Courts have long struggled with contributory negligence, assumption of risk, and volenti non fit injuria (a third concept kindred to and sometimes called an alias for assumption of risk) as these doctrines apply in the case of an employee-invitee. As we have said in considering the law of another state, "An examination of only a small number of the cases which have dealt with these three principles leads one into a maze of confusion and contradiction, from which one emerges only with a conviction that the decisions are irreconcilable." Swift and Co. v. Schuster, 10 Cir., 192 F.2d 615, 617. Probably because of this "confusion and contradiction" a number of courts have very recently restricted the scope of affirmative defenses in cases of this type to contributory negligence. Chief Justice Weintraub recently said for his court that "* * * there is no reason to charge assumption of the risk in its secondary sense as an affirmative defense for something distinct from contributory negligence * * *. * * * if defendant is found to have been negligent, plaintiff is barred only if defendant carries the burden of proving contributory negligence, i. e., plaintiff's failure to use the care of a reasonably prudent man under all of the circumstances either in incurring the known risk or in the manner in which he proceeded in the face of that risk." Meistrich v. Casino Area Attractions, 31 N.J. 44, 155 A.2d 90, 96.2

But, despite what may well be the emerging general law in this area, our case is clearly governed by the law of New Mexico. In Tyler v. Dowell, Inc., 10 Cir., 274 F.2d 890, a non-master-servant case like this one, we were of the opinion that Rutherford v. James, 33 N.M. 440, 270 P. 794, 63 A.L.R. 237, restricted assumption of risk to master-servant cases. We were unclear, however, as to the difference between volenti non fit injuria, which New Mexico seemed to apply in non-master-servant cases and assumption of risk and contributory negligence. This situation, however, has been clarified by the recent cases of Reed v. Styron Const. Co., 69 N.M. 262, 365 P.2d 912, overruling Rutherford v. James, supra, and making assumption of risk expressly applicable in non-master-servant cases. Our task then is to determine according to New Mexico law the legal distinction, if any, between assumption of risk and contributory negligence as an affirmative defense to negligent conduct.

Plaintiff-appellants take the position that New Mexico has merged the defense of assumption of risk into contributory negligence; that applying the reasonable man test of contributory negligence and viewing the evidence most favorably to the plaintiffs, a case was made for the jury. They rely on three New Mexico cases. The first is Snodgrass v. Turner Tourist Hotels, 45 N.M. 50, 109 P.2d 775, 778, where the court in ruling that a charge on assumption of risk was improper absent evidence of knowledge of the risk, cites as authority § 466 of the Restatement of Torts. As we noted in Tyler v. Dowell, Inc., supra, this section refers to contributory negligence. It states in subsection (a) that contributory negligence may consist of "an intentional and unreasonable exposure * * * to danger created by the defendant's negligence of which danger the plaintiff knows or has reason to know * * *." Reliance is also placed on Jackson, et al. v. Southwest Public Service Co., 66 N.M. 458, 349 P.2d 1029, 1032-1033. There the court rejected the contention that the difference between assumption of risk and contributory negligence was "more philosophical than real"; but at the same time it stated that the main problem was whether the plaintiff was guilty of contributory negligence, and that plaintiff's knowledge of conditions and whether he assumed the risk would be considered under the heading of contributory negligence "although strictly it would be possible to consider them separately". Appellants most vigorously rely on Padilla v. Winsor, 67 N.M. 267, 354 P.2d 740, 744-745, where the court after quoting from 2 Shearman and Redfield on Negligence, p. 575 on the traditional elements of assumption of risk, quotes further from the same work to the following effect:

"The true rule, as nearly as it can be stated, is that a servant can recover for an injury suffered from defects due to the master\'s fault, of which he had notice, if under all the circumstances, a servant of ordinary prudence, would under similar conditions, have been justified in continuing the same work under the same risk. All the circumstances must be taken into account and not merely the isolated fact of risk." i. e. Id. 586.

The Padilla court could not find assumption of risk as a matter of law because reasonable minds could differ "* * * as to whether plaintiff * * * acted as any ordinarily prudent person in continuing to use the horse furnished him in his employment."

Appellants thus make a good case, and if Padilla were the last word, we would be inclined to accept their argument. But, the New Mexico court put its own interpretation on Padilla in Reed v. Styron, supra, reiterating the traditional test for assumption of risk: "We recently set forth in Padilla v. Winsor * * * the elements necessary to bar recovery under the doctrine of assumption of risk as: (1) the plaintiff must know of the defect, (2) appreciate the danger, and (3) voluntarily assume the risk. He is presumed to know and take notice of those risks and defects which are obvious, but he does not...

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    ...to the plaintiff and defendant. See also Dempsey v. Alamo Hotels, Inc., 76 N.M. 712, 418 P.2d 58, and cf. Demarest v. T. C. Bateson Construction Company, 370 F.2d 281 (10th Cir.). Applying our concept of applicable Utah law in Titan Steel Corporation v. Walton, 365 F.2d 542 (10th Cir.), we ......
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