Eastman Kodak Company v. Martin

• Decision Date: 12 September 1966
• Docket Number: No. 22085.,22085.
• Citation: 362 F.2d 684
• Parties: EASTMAN KODAK COMPANY, Appellant, v. Mrs. Peggy MARTIN et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

362 F.2d 684 (1966)

EASTMAN KODAK COMPANY, Appellant, v. Mrs. Peggy MARTIN et al., Appellees.

No. 22085.

United States Court of Appeals Fifth Circuit.

June 21, 1966.

Rehearing Denied September 12, 1966.

Herbert Boyland, Longview, Tex., Curtis White, Robert M. Greenberg, Dallas, Tex., for appellant.

Fred Erisman, Longview, Tex., Scott Baldwin, Franklin Jones, Jr., Jones, Jones & Baldwin, Marshall, Tex., for appellees.

Before HUTCHESON, BURGER^* and WISDOM, Circuit Judges.

HUTCHESON, Circuit Judge:

This action was brought by Mrs. Ronald Martin and her four minor children under the Texas Wrongful Death Act¹ to recover for the death of Ronald Martin, their husband and father. At the time of his death, Martin was employed by an independent contractor engaged in demolition work under contract with, and on the premises of, the defendant Eastman Kodak Company. Upon a jury verdict finding Eastman negligent and assessing damages, the district court entered judgment against Eastman. For the reasons hereafter stated this judgment must be reversed and the cause remanded for trial anew.

On this appeal both legal and procedural errors are presented for our determination. We are all of the opinion that the procedural issues raised require reversal of the district court's judgment. Judges Burger and Wisdom are in agreement that the cause should be remanded for trial anew because they reach a different conclusion from mine on legal issues raised by Eastman. Because I am convinced that Eastman's position on these issues is correct, I shall state my views thereon in a separate portion of this opinion.

During 1962, Eastman contracted with L. E. Meyers Company for the dismantling of an abandoned portion of a power line located on Eastman's premises in Harrison County, Texas. Meyers specialized in the erection, maintenance, and removal of utility lines. The power line was originally constructed in 1950. The portion to be dismantled was abandoned after Meyers had constructed a replacement for it in 1959 and was not thereafter maintained. Involved in the dismantling were seven poles (designated Poles 1-7.² Poles 1 and 4 were permanently guyed when the power line was constructed by guy wires wrapped around a crosstie buried some six feet under ground. This method of guying the poles was somewhat unorthodox. Eastman did not notify Meyers prior to or during the dismantling of the manner in which the guys were constructed, nor did Meyers or its employees actually know of this. Eastman desired to retain for reuse the dismantled poles and wire; otherwise Meyers had complete and exclusive control of the demolition work and the premises on which it was to be done.

In carrying out its task, Meyers and its employees, including Martin, detached the power line from Poles 2, 3, 5, and 6, so that the line extended from Pole 1 to Pole 4 and from Pole 4 to Pole 7. Although the evidence varies widely as to the effects of this, it undoubtedly increased substantially the weight sustained by each of the remaining poles.³ Meyers expressed concern regarding the condition of the poles to be removed and in fact took precautions against the possibility that the poles were rotted.⁴ Martin then climbed Pole 4 to remove the power line from this pole; the line was lifted by a winch truck to provide enough slack in the line to allow its removal. During this operation no precautions were taken to reinforce or support Pole 1 or 4 or their guys. At this time the guys supporting Pole 1 broke, Poles 1 and 4 broke, and Pole 4 fell, carrying with it and killing Martin. The Pole 1 guys were found to have corroded under ground and to be severely weakened. Although Eastman was familiar with the construction of the guys, it did not know of their weakened condition; apparently Meyers' employees, including Martin, had not inspected the guys and were unaware of their condition.

Appellees instituted this suit to recover for Martin's death, contending that Eastman owed a duty to provide Martin a safe place to work; that this duty was breached by Eastman's failure to maintain the Pole 1 guys in a proper condition or to warn Martin or Meyers thereof; and that this breach of duty was the proximate cause of Martin's death. Eastman denied that it owed Martin a duty to warn him of, or to protect him from, the weakened guys. It further argues that any duty owed Martin was not breached by the weakened guys; that the guys did not cause the accident; that any dangers involved in the demolition work were incidental thereto or were open and obvious to, and assumed by, Martin; and that the conduct of Meyers and its employees in connection with the work was the sole cause of the accident. The trial judge submitted the case to the jury on a general charge, but specifically instructed the jury with regard to each of the issues raised by Eastman. The jury returned a verdict in favor of appellees and against Eastman, and assessed damages totalling $230,000.

Chief among Eastman's many arguments in this Court is its assertion that it owed no duty, and thus breached no duty, toward Martin. Alternatively, it insists that the district court's judgment should be reversed and the cause remanded for a new trial because of errors committed by the district court in the giving of charges. We are all agreed that, as to some of the charges given, the district court committed reversible error, which necessitates setting aside the court's judgment, and we shall first discuss these matters.

In the trial court Eastman asserted that the sole and exclusive cause of Martin's injuries was the activities of Meyers and its other employees. This of course raised the issue of sole proximate cause.⁵ For if in fact Meyers' conduct was the sole proximate cause of Martin's injuries, Eastman's conduct could not have been a proximate cause of the injuries, and thus no recovery could be had against it. In its charge to the jury regarding this issue,⁶ the trial court did two things: it placed the burden of proving sole proximate cause on the defendant Eastman; and it strongly implied that only if Meyers' conduct was negligent could it constitute the sole proximate cause of Martin's injuries. Eastman took exception to both these actions, and argues here for reversal based thereon.

Eastman's point is well taken. Under the Texas law the defendant has the burden of introducing the issue of sole proximate cause. Once he has done so, however, and has made out a prima facie case sufficient to go to the jury, it is incumbent on the plaintiff, as a part of his case, to disprove the facts relied on to show sole proximate cause. The burden of persuasion on this issue, then, although it be to prove the non-existence of alleged facts, is upon the plaintiff, and not the defendant.⁷ Furthermore, to constitute "sole proximate cause", the conduct of the third person who it is alleged exclusively brought about the plaintiff's injuries need not be negligent; rather it need only have been conduct, whether negligent or otherwise, which was the sole and only cause of the complained-of injuries. Thus in determining whether the conduct of the third person was the sole proximate cause, it is plainly improper to require that such conduct be negligent as a prerequisite to an affirmative finding on this issue.⁸ The trial court's instructions to the jury on this issue certainly were highly prejudicial to Eastman's chances of success, and call for a reversal of the court's judgment.

The procedural errors thus committed by the district court can be remedied only upon a new trial. Judges Burger and Wisdom are of the belief that the cause should now be remanded to the district court for trial anew. They do not join in my view of the legal issues raised which lead me to the opinion that as a matter of law no recovery can be had against Eastman; because of this I shall detail my views on this.

In my view there is one simple, single question of law⁹ before us: did Eastman have a legally recognizable duty to protect Martin from the risks resulting in Martin's death? Stated another way, in order for one to be negligent with respect to another, his conduct must create a legally recognizable risk of harm to the other individually or to a class of persons of which the other is a member. If one's conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class to whom the actor owed no duty does not make the actor liable to the injured party.¹⁰

Appellees observe that it is customary for companies with power lines to adhere to the safety rules of the National Bureau of Standards with respect to the construction and maintenance of such lines, and point out that these rules provide that "Lines permanently abandoned shall be removed or maintained in a safe condition." Appellees argue that one purpose of the above-quoted rule was to protect persons having to go on or about abandoned lines to dismantle them. From this it is concluded that Eastman owed a duty to Meyers and its employees to maintain the abandoned line after its abandonment, including its supporting guys, in such condition that the line could be safely dismantled by them.

Quite obviously this rule requiring maintenance of abandoned lines was intended to protect members of the general public from the dangers existing when such lines are not immediately removed. But Meyers, and its employee, Martin, were not members of the general public, who had wandered, or been permitted, or invited, on the premises where the line was located. Rather Meyers and Martin came upon the premises with but one objective: removal of the abandoned line, and thus removal of the dangers inherent therein and posed by its continued existence. The rule invoked by appelles was not intended to, and does not, protect those going on the line to repair or dismantle it from the very dangers which they were employed to remove. I am persuaded that...