Elder v. E.I. DuPont De Nemours and Co., Inc.

• Citation: 479 So.2d 1243
• Parties: George Eugene ELDER v. E.I. DuPONT DE NEMOURS AND COMPANY, INC. 84-287.
• Decision Date: 01 November 1985
• Court: Supreme Court of Alabama

Page 1243

479 So.2d 1243

George Eugene ELDER v. E.I. DuPONT DE NEMOURS AND COMPANY, INC.

84-287.

Supreme Court of Alabama.

Nov. 1, 1985.

Rehearing Denied Dec. 6, 1985.

James E. Atchison and Richard M. Crump of Hess, Atchison & Horne, Mobile, for appellant.

James P. Green of Brown, Hudgens, Richardson, Mobile, for appellee.

HOUSTON, Justice.

This case arises from an on-the-job injury that plaintiff George Eugene Elder sustained while working at International Paper Company's Mobile plant. Elder sued E.I. DuPont De Nemours and Company (DuPont) for breach of contract and negligent failure to provide a safe working environment.

The facts are as follows:

In the early part of 1981, DuPont entered into a painting service contract with International Paper. Under the terms of the contract, DuPont was to perform maintenance paint service at International Paper's Mobile plant for a specified dollar amount. The general conditions for the painting service contract were incorporated into the main contract and included the following provisions:

"11. SAFETY AND PROTECTION OF PROPERTY--DuPont shall, to the extent possible, protect the property of Owner and adjacent PROPERTY from damage due to its operations or operations of labor subcontractors performing work hereunder. DuPont shall also comply with all applicable provisions of federal, state and municipal laws and regulations, in addition to promptly complying, whenever possible, with any direction of Owner's representative for the prevention, detection and extinguishing of fires, or the elimination of safety hazards....

"....

"14. INSURANCE--Before work is commenced, and upon Owner's request, DuPont and labor subcontractors shall submit evidence of either purchased insurance or, at their option, evidence of self-insurance to Owner for the following liability limits:

"(a) Workmen's compensation insurance as required by law including employer's liability limit of $100,000;

"(b) Comprehensive general liability including contractual and contractor protective liability with limits of $500,000 bodily injury and $500,000 property damage;

"(c) Comprehensive automobile liability including hired, owned, and non-owned automobile coverage with limits of Bodily Injury--$250,000/person, $500,000 occurrence, Property Damage--$500,000/occurrence.

"DuPont shall furnish at Owner's request, prior to start of work, certificates of insurance or a letter evidencing self-insurance for itself and/or its subcontractors, for the above limits and a cancellation-clause endorsement providing that ten (10) days' prior written notice will be sent to the Insurance Department at Owner's headquarters.

"All insurance shall be in a standard stock insurance company or a nonassessable mutual insurance company."

Under the terms of this painting service contract with International Paper, DuPont subcontracted with Coating Services, Inc. (Coating), for performance of the actual painting work at the plant. The subcontract contained the following provision:

"10. TAXES AND INSURANCE--CONTRACTOR assumes full responsibility for the payment of all Social Security, Unemployment Compensation and other taxes and charges for all employees engaged by CONTRACTOR in the performance of the services hereunder, and he will require each of his subcontractors, if any, to do the same.

"Unless other limits are specified by DUPONT, CONTRACTOR shall, at his expense, carry insurance of minimum limits as follows: (a) Workmen's Compensation--statutory and Employer's Liability--$100,000, (b) Public Liability Bodily Injury--$500,000, Public Liability Property Damage--$500,000 and Contractual coverage for Liability assumed under Paragraph 13, (c) Automotive Public Liability Bodily Injury (covering owned, hired and all classes on non-owned vehicles) $250,000/$500,000 and Property Damage $500,000. If any subcontractors are employed, each subcontractor must carry the same types of insurance of the same minimum limits; and CONTRACTOR shall carry Contractor's Protective Public Liability Bodily Injury and Protective Property Damage Insurance of the same minimum limits. CONTRACTOR shall maintain at DUPONT'S expense such other insurance as DUPONT may request in writing...."

Coating began work on the job of paint maintenance at the plant. One of its employees at that time was the plaintiff, George Eugene Elder. On September 16, 1981, Elder, who had been promoted to the position of sandblaster less than a month before, was assigned the task of sandblasting a long cylindrical tank to prepare it for painting. After blasting all of the tank he could reach from the ground, he blasted all he could reach from the top of the tank. A one foot wide strip down the length of the tank remained.

Because rain was threatening, Elder was ordered by his supervisor to finish the unblasted strip as quickly as possible. The supervisor told Elder to find a ladder so that he could reach the unfinished strip. A manlift was available as an alternative to the ladder for completion of the job, but the supervisor decided there was not enough time to get to the manlift before the rain would begin.

Elder set the ladder up himself. He chose where to put the ladder and how to lean it against the tank. Although he found that the ground where he set the ladder was not level and that there were rocks by the adjacent railroad tracks, he proceeded to climb the ladder and began the sandblasting anyway.

Elder used a safety belt to tie himself onto the ladder. The ladder, the safety belt, and the sandblasting equipment were owned by Coating. No representatives of DuPont were present.

A sandblaster blows out a large amount of pressure, and Elder always had to lean hard into the sprayer to offset that pressure. A sandblaster can also produce sudden surges of pressure, and Elder had experienced this phenomenon before. When Elder had almost completed the sandblasting of the remaining strip on the tank, the pressure in the sandblasting hose increased suddenly and drastically. This sudden surge in pressure kicked Elder and the ladder backwards, and he plunged down hard upon the metal railroad tracks. His lower back was badly injured. He was taken to Providence Hospital, where he was admitted for care. Coating did not have workmen's compensation insurance. Elder's hospital expenses were not paid, and Elder received no workmen's compensation benefits.

Elder sued DuPont on its contract with International Paper. He claimed he was a third-party beneficiary of a promise by DuPont to require or insure that Coating had workmen's compensation insurance. He also sued DuPont for negligent failure to provide a safe working environment.

At trial, when Elder closed his case, the trial court directed a verdict in favor of DuPont on the breach of contract claims. At the close of all the evidence, Elder moved for a directed verdict as to DuPont's affirmative defenses of contributory negligence and assumption of risk. The trial court overruled that motion. The jury then returned a verdict in favor of DuPont. Elder moved at that time for judgment notwithstanding the verdict (JNOV) or for a new trial. The trial court overruled that motion, and Elder appeals. We affirm.

Elder presents six issues for review:

I. Whether the trial court erred when it dismissed Elder's claims for breach of contract;

II. Whether the trial court erred in its charge to the jury regarding negligence per se;

III. Whether the trial court erred in its charge to the jury regarding the scope of DuPont's duty to Elder to provide a safe working environment;

IV. Whether the trial court erred when it denied Elder the use of expert testimony regarding possible OSHA violations committed by DuPont;

V. Whether the trial court erred when it overruled Elder's motion for directed verdict;

VI. Whether the trial court erred when it overruled Elder's motion for JNOV or for a new trial.

I

Elder alleged in the first three counts of his complaint that DuPont was under a contractual duty to ensure that its subcontractor, Coating, had workmen's compensation insurance, and that DuPont breached that duty. Elder alleges that Section 14 of the contract between DuPont and International Paper, supra, established this duty.

When the contract between DuPont and International Paper came into evidence at trial, Elder attempted to introduce further evidence as to the contract's meaning. However, the trial court ruled that Section 14 of the contract was unambiguous and stopped any further presention of evidence as to its meaning. This action was proper. Under Alabama law, it is the duty of the trial court to determine whether a contract is ambiguous, and only if the contract is ambiguous will it be sent to a jury for interpretation. Alpine Construction Co. v. Water Works Board of the City of Birmingham, 377 So.2d 954 (Ala.1979).

The trial court determined, as a matter of law, that the contract did not create a duty on the part of DuPont to ensure that its subcontractor had insurance. The trial court ruled that the contract provided DuPont need furnish evidence of such insurance only if the owner of the premises, International Paper, were to make that request. It was the task of Elder to introduce evidence that International Paper made such a request. Yet Elder presented no such evidence, and the trial court directed a verdict in favor of DuPont as to the breach of contract claims.

In order to survive a motion for directed verdict, a contestant must present a scintilla of evidence in support of his claim. Ralls v. First Federal Savings and Loan Association of Andalusia, 422 So.2d 764 (Ala.1982). Once the trial court determined that the contract required DuPont to furnish evidence of insurance only if the owner were to so request, then proof of breach of contract became dependent upon evidence that International Paper made that request. There is not a scintilla of evidence in the record to indicate that such action was taken by...