Dresco Mechanical Contractors, Inc. v. Todd-Cea, Inc.

• Decision Date: 24 May 1976
• Docket Number: TODD-CE,INC,No. 75--1009,75--1009
• Citation: 531 F.2d 1292
• Parties: DRESCO MECHANICAL CONTRACTORS, INC., et al., Plaintiffs, v., Defendant-Third-Party Plaintiff-Appellant, v. J. W. AUSTIN, JR. & ASSOCIATES, INC., Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1292

531 F.2d 1292

DRESCO MECHANICAL CONTRACTORS, INC., et al., Plaintiffs, v. TODD-CEA, INC., Defendant-Third-Party Plaintiff-Appellant, v. J. W. AUSTIN, JR. & ASSOCIATES, INC., Third-Party Defendant-Appellee.

No. 75--1009.

United States Court of Appeals, Fifth Circuit.

May 24, 1976.

Rehearing Denied June 25, 1976.

Clayton H. Farnham, Earle B. May, Jr., Atlanta, Ga., for appellant.

David A. Handley, Atlanta, Ga., for J. W. Austin & Associates, Inc.

Appeal from the United States District Court for the Northern District of Georgia.

Before DYER and CLARK, Circuit Judges, and KRAFT, ^* District Judge.

CLARK, Circuit Judge:

In this Georgia tort law diversity case, defendant/third party plaintiff Todd-CEA, Inc. (Todd) appeals from a judgment notwithstanding the verdict entered in favor of third-party defendant J. W. Austin, Jr. & Associates, Inc. (Austin). Agreeing with the trial court that there was no competent evidence in the record establishing a violation of any duty owed by Austin, we affirm.

The case grew out of a boiler explosion April 1, 1971, on the Athens campus of the University of Georgia. The plaintiffs in this action, Regents of the University System of Georgia, Georgia Education Authority, and Dresco Mechanical Contractors, Inc., (Dresco) entered into a contract for the construction of a two-boiler heating plant at the University. The defendant, Todd-CEA (Todd), designed and manufactured the burners and combustion controls for the new facility under a subcontract with Dresco. Third-party defendant Austin contracted with the Regents to act as a consulting engineer on the heating plant. The part of its function pertinent here was to review the design specifications for the system prepared by Todd in conformity with the general design requirements first set out by Austin in the pre-bid job description.

The explosion took place during a test run of the boiler system before final turnover of the completed job to the University. Todd's employee, Lucas, was in the process of conducting the test by means of bypassing sections of the boiler system's control board with 'alligator clips.' Through a disputed combination of causes, a volatile fuel mixture built up in boiler number one during a low-water shutdown phase, and seconds later the boiler exploded, causing extensive damage. Plaintiffs' theory was that the explosion had been caused by Todd's negligence in the 'design, manufacturing, installation, inspection, testing and operation' of the boiler and burner control system. At trial they produced extensive testimony tending to show that the control units arrived from the off-site point of manufacture by Todd in a miswired condition that did not conform either to the design specifications approved by Austin or to Todd's own drawings purportedly depicting the system 'as built'; that a damper control motor had been installed backwards, in a fashion that closed the damper when it was supposed to open, contributing to the gas buildup in the unit; that Lucas conducted his tests in a trial-and-error fashion with the annunciator system disconnected and without conducting a fuelless 'dry run' to determine how the system was operated. Several witnesses testified that they feared for their safety during the tests because Lucas' actions were causing the boiler to vibrate noticeably. Todd defended at this stage of the action by presenting evidence that Lucas had acted reasonably in his conduct After a nine-day trial and two days of deliberations, the jury returned a verdict for the plaintiff, necessitating trial of the presently appealed third-party action. It was tried before the same jury.

of the tests. In sum, Todd's evidence tended to show that the annunciator system provided no additional safety factor because the boiler was designed to shut down if unsafe conditions, like a flameout, occurred; that the only way wiring errors can be tracked down is by some sort of trial-and-error procedure; that dry-run tests are of little value in determining how the system actually will operate; and that the real cause of the explosion was the existence of a dual timer burner control system, insisted upon by Austin, that sent contradictory signals throughout the system. The latter evidence was introduced despite the trial court's decision, before the taking of testimony, to try the primary action without participation by Austin after jury selection beyond the presence at and observation of the proceedings by its counsel and then to try the third-party action (if needed) before the same or a different jury, depending on the length of the trial. ¹

Todd advanced two theories for recovery from Austin: that Todd and Austin were joint tortfeasors, and that Todd's negligence was merely 'passive' while Austin's was 'active.' The proof offered to support these claims focused on the dual timer system. Todd and its witnesses posited that specification of a dual timer system was negligent in itself because such a system created the possibility of conflicting signals, whereas a single timer system would not contain such a hazard. Austin sought to show that there is nothing inherently negligent about specifying a dual timer system and that if built and installed properly, such a system could be operated safely and generate significant cost savings by avoiding unnecessary shutdowns of the boiler system. Austin further adduced proof that, instead of specification errors, errors in construction, installation and testing had caused the explosion.

The jury responded to special interrogatories propounded by the court as follows:

VERDICT

1. Was J. W. Austin & Associates negligent in failing to reject or disapprove the use of two timers, rather than one? (X) Yes ( ) No

If your answer to Question No. 1 is yes, then answer Question No. 2.

2. Was such negligence a contributing proximate cause of damages found by you in your previous verdict? (X) Yes ( ) No

If your answer to Question No. 2 is yes, then answer Question No. 3.

3. Was the negligence of todd-CEA upon which you based your prior verdict active and positive negligence? (X) Yes ( ) No

If your answer to Question No. 3 is no, then answer Question No. 4.

4. Was the negligence of J. W. Austin as found in your answer to Question No. 2 active and positive negligence. ( ) Yes ( ) No

However, after receiving and considering motions and briefs submitted by the parties, the district court entered the following order:

The Court being of the opinion that the evidence in the case will not support a finding that the specification of a dual timer system is inherently negligent, or even that the explosion itself was the proximate result of the use of a dual timer system, the motion of the third-party defendant, J. W. Austin, Jr., & Associates, Inc., for judgment N.O.V. is hereby GRANTED.

Alternatively, in the event the above ruling should not be sustained in the Court of Appeals, the Court hereby contingently grants the motion of the third-party defendant, J. W. Austin, Jr., & Associates, Inc., for a new trial.

This 6 day of December, 1974.

In this court, Todd argues that there was competent evidence in the record to sustain the jury's verdict and that the judgment n.o.v. should be reversed and judgment rendered on the verdict. Austin argues that the trial court was correct in entering judgment n.o.v., but that even if it was not, numerous grounds exist for granting the motion for new trial. We turn first to the propriety of the judgment notwithstanding the verdict.

Todd's action against Austin rested on a theory of negligent design. To establish a cause of action on such a theory under Georgia law, Todd was required to establish that Austin's acts or omissions breached its duty to observe the standard of care it owed to those with whom it dealt and that this breach was a proximate cause of the occurrence from which damage was suffered. As an engineering firm, Austin's duty of care was that of a responsible professional person or organization. It is

. . . the obligation to exercise a reasonable degree of care, skill, and ability, which generally is taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by their respective professions.

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