Duncan v. Pennington County Housing Authority

• Decision Date: 26 September 1979
• Docket Number: Nos. 12235,12248,s. 12235
• Citation: 283 N.W.2d 546
• Parties: 1979 O.S.H.D. (CCH) P 23,964 Coyle W. DUNCAN, Plaintiff, Respondent and Cross-Appellant, v. PENNINGTON COUNTY HOUSING AUTHORITY, Aukerman and Mazourek, Inc., Dan J. Brutger, John A. Wahl, Richard E. Schreifels, Norman A. Beekley, Joel Marthaler, Don Schaefer, Gary Nelson, Dale Barck, and Tom Rentz, Defendants. AUKERMAN AND MAZOUREK, INC., Defendant, Third Party Plaintiff, Appellant and Cross-Respondent, v. DAN J. BRUTGER, INC., Third Party Defendant.
• Court: South Dakota Supreme Court

Page 546

283 N.W.2d 546

1979 O.S.H.D. (CCH) P 23,964

Coyle W. DUNCAN, Plaintiff, Respondent and Cross-Appellant, v. PENNINGTON COUNTY HOUSING AUTHORITY, Aukerman and Mazourek,

Inc., Dan J. Brutger, John A. Wahl, Richard E. Schreifels,

Norman A. Beekley, Joel Marthaler, Don Schaefer, Gary

Nelson, Dale Barck, and Tom Rentz, Defendants.

AUKERMAN AND MAZOUREK, INC., Defendant, Third Party Plaintiff, Appellant and Cross-Respondent, v. DAN J. BRUTGER, INC., Third Party Defendant.

Nos. 12235, 12248.

Supreme Court of South Dakota.

Sept. 26, 1979.

Robert L. Varilek and David P. Olson, Rapid City, for plaintiff, respondent and cross-appellant.

Robert A. Warder of Gunderson, Farrar, Aldrich, Warder & De Mersseman, Rapid City, for defendant, third party plaintiff, appellant and cross-respondent.

WOLLMAN, Chief Justice (on reassignment).

These are appeals from the judgment entered on a jury verdict in favor of plaintiff and respondent, Coyle W. Duncan (Duncan), against defendant and appellant, Aukerman and Mazourek, Inc. (appellant), the sole non-settling defendant at trial of the matter. Appellant's third-party action against Dan J. Brutger was severed by the trial court from the trial of the primary case. In appeal # 12235, appellant appeals from the judgment of liability to respondent Duncan. We reverse and remand. In appeal # 12248, Duncan cross-appeals from the judgment. We affirm.

Duncan was an iron worker employed by Brutger, Inc., which was the general contractor on a project to build high-rise low-income housing for the Pennington County Housing Authority (PCHA). On January 9, 1975, Duncan sustained serious injuries as a result of a twenty-two-foot fall from a building known as "High-rise Project West" that was then under construction. He originally brought suit against appellant, PCHA, Dan J. Brutger, Inc., Dan J. Brutger (President of Dan J. Brutger, Inc.), John A. Wahl, Richard E. Schreifels, Norman A. Beekley, Joel Marthaler, Dan Schaefer, Gary Nelson, Dale Barck, and Tom Rentz (employees of Dan J. Brutger, Inc.). Prior to conclusion of the trial, all of the defendants except appellant entered into settlement agreements with Duncan. PCHA settled for $20,000, and the remaining settling defendants settled for $130,000. The jury returned a verdict for Duncan in the amount of $215,000.

There were no eyewitnesses to the accident that caused the injuries. It was established at trial that Duncan suffers from retrograde amnesia concerning the events surrounding the fall. The evidence did establish that Duncan was working on an unfinished landing in the stairway-well between the second and third floors when he fell against a temporary safety guard rail that failed to support his weight and allowed him to fall on the ground.

Appellant was hired by PCHA as architect for the two high-rise projects. Under the terms of the contract between appellant and PCHA, ten percent of appellant's fee was for appellant's supervision of the day-to-day construction. The contract made reference to appellant's duty to assure that all of the contractual documents were complied with throughout the construction period. Reference was made in these documents to the safety requirements contained in standards promulgated by the Occupational Safety and Health Administration (OSHA).

Appellant employed David Davies as a supervising agent. Mr. Davies visited each of the construction sites several times a day. On December 2, 1974, OSHA issued a citation against the construction site for three specific violations. One of these violations was that twenty percent of the temporary wooden railings in the building were not constructed according to standards. Mr. Davies, who had received this citation, testified that he knew the hand rails were inadequate.

Appellant's first contention is that it owed no duty to insure the safety of employees of the general contractor against injuries caused by temporary construction measures and devices. Appellant argues that its sole duty of supervision was to insure that the building, in its final form, was constructed according to the specifications contained in the building plans.

The trial court concluded that the contract between appellant and PCHA was ambiguous with respect to appellant's duty to Duncan to supervise the safety precautions taken at the construction site and submitted the issue to the jury.

In Simon v. Omaha Public Power District, 189 Neb. 183, 202 N.W.2d 157 (1972), the Nebraska Supreme Court faced a similar situation. In that case, plaintiff, an employee of an independent contractor, fell through a hole in the floor of a building the Omaha Public Power District was having constructed. The court noted the manner in which the ordinary extent of the duty of an architect may be enlarged: "We observe that the primary duty of architects may usually be only to assure to the owner that before final acceptance the work has been completed in accordance with the plans and specifications; and that in this case, by written contract, (the architects) assume much more." 189 Neb. at 200, 202 N.W.2d at 168. The Nebraska court found the contract in that case to be an unambiguous assumption of supervisory responsibility by the architect and held that the architect may be liable when that duty is performed in a negligent manner. For a discussion of the rule that where architects have assumed supervisory duties for safety precautions via contract they may be held liable for injury stemming from a breach of that duty, see Annot. 59 A.L.R.3d 869 (1974).

Appellant's reliance upon the case of Luterbach v. Mochon, Schutte, Hackworthy, Juerisson, Inc., 84 Wis.2d 1, 267 N.W.2d 13 (1978), is misplaced. In Luterbach, the court concluded that the owner-contractor agreement and the owner-architect contract should be construed together to determine the architect's duty. Language from the owner-architect agreement specifically provided that the architect should not be responsible for safety precautions and programs.

We conclude that the trial court did not err in submitting the question of appellant's liability to the jury.

Appellant next contends that the trial court erred in allowing the OSHA regulations to be introduced as evidence of the standard of care appellant was obliged to meet. Appellant argues that the express purpose of OSHA is to impose safety responsibilities solely upon employers. 29 U.S.C. § 653(b)(4) provides: "Nothing in this chapter shall be construed to . . . enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment." Appellant concludes that this language evinces a congressional intention that OSHA not create a statutory right of action by an employee against an employer. A fortiori, the Act may not be used to create a statutory right of action against one who is not an employer.

Appellant misconstrues the gist of Duncan's theory of liability. Duncan's cause of action does not arise as a result of a violation of some statutory duty created by the OSHA standards. Rather, it will lie only if Duncan's injuries were the proximate result of appellant's negligent breach of a duty that appellant undertook by contract to perform. As this court said in Weeg v. Iowa Mutual Insurance Co., 82 S.D. 104, 110, 141 N.W.2d 913, 916 (1966):

"Negligence which consists merely in the breach of a contract will not afford ground for an action by any one, except a party to the contract . . . . But where, in omitting to perform a contract, in whole or in part, one also omits to use ordinary care to avoid injury to third persons, who . . . would be exposed to risk by his negligence, he should be held liable to such persons for injuries which are the proximate result of such omission." (citation omitted)

One section of the contract between appellant and PCHA provides: "In addition to the general and supervisory services during construction, on-the-site inspection shall be provided by the Architect, Who shall undertake to obtain compliance with the contract documents . . . ." (emphasis supplied). One of the contract documents appellant agreed to obtain compliance with was the OSHA standards. Accordingly, it was not error for the trial court to allow these documents to be introduced as evidence of the duty appellant agreed to perform. Similar use of OSHA standards was made in Knight v. Burns, Kirkley & Williams Const. Co., Inc., 331 So.2d 651 (Ala.1976), where the court said: "Under proper circumstances Occupational Safety and Health Act provisions and regulations may be admissible for a jury to consider in determining the standard of care that a defendant should have followed . . . ." 331 So.2d at 654. For similar treatment of state regulations see Weeks v. Prostrollo Sons, Inc., 84 S.D. 243, 169 N.W.2d 725 (1969); Serles v. Braun, 79 S.D. 456, 113 N.W.2d 216 (1962); and Simon v. Omaha Public Power District, supra.

Appellant next contends that the trial court erred in its treatment of the settlement entered into between Duncan and the other defendants, arguing that the failure of the trial court to apply the $20,000 received by Duncan from PCHA to appellant's share of the judgment results in a double recovery for Duncan. Appellant argues that the $20,000 should be applied against the $16,125 that the trial court found was appellant's share of the verdict, leaving Duncan with no collectible judgment against appellant. Duncan contends that the total of all settlements received should be used to reduce the jury verdict pro tanto, leaving $65,000 to be paid by appellant. We conclude that the $20,000 paid to Duncan by PCHA must be used to reduce the judgment pro tanto.

The settlement agreement between Duncan and PCHA provides in pertinent part:

It is specifically acknowledged and understood that Duncan claims that...