Ellis v. Chase Communications, Inc.

• Decision Date: 25 August 1995
• Docket Number: No. 93-6465,93-6465
• Citation: 63 F.3d 473,153 A.L.R. Fed. 693
• Parties: Jere ELLIS, as Administrator of the Estate of Jere Martin Ellis, Deceased; Mary Ann Lacy Ellis, Individually, as widow of Jere Martin Ellis, Deceased, and as Mother and Next Friend of Robert Allen Ellis, Minor Son of Jere Martin Ellis, Deceased; Sheila Myers Ellis Pankey, as Mother and Next Friend of Elizabeth Suzanne Ellis, Minor Daughter of Jere Martin Ellis, Deceased; Karen Lorraine Ellis Burden, as Mother and Next Friend of Angela Lorraine Ellis and Veronica Anne Ellis, Minor Daughters of Jere Martin Ellis, Deceased, Plaintiffs-Appellants, v. CHASE COMMUNICATIONS, INC.; Chase Family Limited Partnership # 7, Defendants-Appellees, Nationwide Tower Company, Inc., Third-Party Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 473

63 F.3d 473

Jere ELLIS, as Administrator of the Estate of Jere Martin Ellis, Deceased; Mary Ann Lacy Ellis, Individually, as widow of Jere Martin Ellis, Deceased, and as Mother and Next Friend of Robert Allen Ellis, Minor Son of Jere Martin Ellis, Deceased; Sheila Myers Ellis Pankey, as Mother and Next Friend of Elizabeth Suzanne Ellis, Minor Daughter of Jere Martin Ellis, Deceased; Karen Lorraine Ellis Burden as Mother and Next Friend of Angela Lorraine Ellis and Veronica Anne Ellis, Minor Daughters of Jere Martin Ellis Deceased, Plaintiffs-Appellants, v. CHASE COMMUNICATIONS, INC.; Chase Family Limited Partnership # 7, Defendants-Appellees Nationwide Tower Company, Inc., Third-Party Defendant.

No. 93-6465.

United States Court of Appeals Sixth Circuit.

Argued Jan. 31. 1995.

Decided Aug. 25, 1995.

Ralph F. Mitchell (briefed), Rendings, Fry, Kiely & Dennis, Cincinnati, OH, Ralph I. Lawson (argued and briefed), Lawson & Lannom, Dyersburg, TN, Steven L. West (briefed), West & West, McKenzie, TN, for plaintiffs-appellants.

William B. Walk, Jr., Hardison Law Firm, Memphis, TN, Jerry O. Potter (argued and briefed), Memphis, TN, for defendants-appellees.

Before: WELLFORD, BOGGS, and SILER, Circuit Judges.

SILER, J., delivered the opinion of the court, in which BOGGS, J., joined. WELLFORD, J. (pp. 478-83), delivered a separate concurring opinion.

SILER, Circuit Judge.

Plaintiffs, the administrator of the estate and next of kin of the deceased, Jere Martin Ellis, appeal the district court's grant of summary judgment in favor of defendant, Chase Communication Co. ("Chase"). The district court held that Chase owed no duty to protect Ellis, an employee of an independent contractor, from obvious and apparent dangers on its property, even though Ellis was engaged in inherently dangerous work when he fell off a transmission tower. For reasons stated herein, we affirm.

I.

Chase was the owner of a television tower located in Shelby County, Tennessee. On October 7, 1991, Chase contracted with Nationwide Tower Company to clean and paint the tower. Nationwide then subcontracted the job to Charles Raines. The subcontract with Nationwide provided that Raines would furnish all labor, materials, equipment, and supervision, and that the work would be performed in accordance with applicable Occupational Safety and Health Act ("OSHA") rules and regulations.

Ellis was an employee of Raines. On October 25, 1991, Ellis fell 985 feet to his death while painting the tower. At the time of the fall, his only protective equipment was a short belt safety harness, which Ellis had unhooked in order to change positions on the tower.

Suit was filed in the district court against Chase, based on the court's diversity jurisdiction. The court granted summary judgment for Chase, finding that Ellis was engaged in an inherently dangerous activity, but that he was not an actual or statutory employee of Chase. The court concluded that OSHA does not "enlarge the responsibility of the defendants for the death of [Ellis] ... and that the plaintiffs do not have a cause of action under OSHA as the act does not create a private right of action for violation of its terms." The court then relied on Tennessee law in ruling that "the defendants do not have any liability for the death of ... an employee of an independent contractor, even though [Ellis] ... was engaged in an inherently dangerous work." This appeal ensued.

II.

Summary judgment is appropriate only if the record clearly demonstrates that there exists no issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Deaton v. Montgomery County, 989 F.2d 885 (6th Cir.1993). The district court determined that, as a matter of law, ¹ Chase owed no duty to Ellis, because Ellis was not an employee of Chase at the time of the accident. Additionally, the court held that Chase had violated no state or federal statute that would render it liable to Ellis. We review the district court's grant of summary judgment de novo. Deaton, 989 F.2d at 887.

Plaintiffs contend that summary judgment in favor of Chase on the duty issue was inappropriate. They cite Inman v. Aluminum Co. of America, 697 S.W.2d 350 (Tenn.Ct.App.1985), in support of their assertion that Chase owed a duty to Ellis to provide a reasonably safe workplace. They further contend that this duty was nondelegable, due to the intrinsically dangerous nature of the work performed. See Jones v. Dyersburg, 59 Tenn.App. 354, 440 S.W.2d 809 (1967); Shell Oil Co. v. Blanks, 46 Tenn.App. 539, 330 S.W.2d 569 (1959); International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854 (1948).

Plaintiffs' argument, however, is based on a misconstruction of the holding of those cases. Inman 's imposition of a duty of care on landowners to provide a reasonably safe workplace is based on premises liability; such duty is limited to a duty of the owner to warn of latent defects. Inman clearly holds that an owner is not subject to liability for failure to warn or protect the employee of an independent contractor against obvious, apparent, or known dangers. Inman, 697 S.W.2d at 353, citing Dempster Bros., Inc. v. Duncan, 61 Tenn.App. 88, 452 S.W.2d 902 (1969); Shell Oil Co., 330 S.W.2d at 571. See also Jackson v. Tennessee Valley Auth., 413 F.Supp. 1050 (M.D.Tenn.1976), aff'd, 595 F.2d 1120 (6th Cir.1979). Plaintiffs have presented no evidence of Chase's failure to warn Ellis of a latent defect in the tower, nor have they alleged that Ellis's fall was caused by a latent defect. On the contrary, the danger that befell Ellis was obvious.

As for the nondelegable duty of an owner to protect against harm cause by inherently dangerous work, Tennessee law is clear: such duty does not extend to the employees of the contractor performing such work. See Cooper v. Metropolitan Gov't of Nashville and Davidson County, 628 S.W.2d 30, 32-33 (Tenn.Ct.App.1981). Cooper, which cites Jones v. Dyersburg, ² expressly states that "the liability of an employer contracting for the performance of inherently dangerous work does not extend to employees of the contractor." Id. at 33. Although Cooper modified the general rule of no liability of a employer for the torts of an independent contractor, it extended liability to third parties only. If liability were extended to the employees of an independent contractor, the court pointed out, an employer who employed a skilled contractor in an effort to minimize the risk of harm to the public posed by work of an inherently dangerous nature would still be liable to the employees of the contractor for the contractor's negligence. For example, "[a] homeowner would be liable to the employees of an electrical contractor for failure to inspect the equipment of the contractor to make sure that it was safe." Id. at 33.

Assuming, arguendo, that the work performed by Ellis was inherently dangerous, Chase should not be penalized for attempting to minimize the risk of harm by hiring a company specializing in such work. Chase's contract with Nationwide Tower Company specified that Nationwide would meet the proper safety, expertise, insurance, and OSHA standards. Moreover, it is undisputed that neither Chase nor its employees exercised any control or supervision over the painting of the tower. ³ Absent evidence of actual control, the owner of the property or the general contractor owes no duty of care to the employees of an independent contractor, aside from the duty to warn of latent dangers, as stated. See Johnson v. EMPE, Inc., 837 S.W.2d 62, 65 (Tenn.Ct.App.1992) (duty to exercise ordinary care to avoid exposing employees to an unreasonable risk of harm is owed by person remaining in complete control of the premises where the accident occurred).

Finally, plaintiffs assert an alternative basis for liability: Chase's alleged failure to comply with federal safety standards, as incorporated into Tennessee's OSHA. See Tenn.Code Ann. Sec. 50-3-101 et seq. The district court, citing Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir.1975); Russell v. Bartley, 494 F.2d 334 (6th Cir.1974); Cochran v. International Harvester Co., 408 F.Supp. 598 (W.D.Ky.1975); and Hare v. Federal Compress and Warehouse Co., 359 F.Supp. 214 (N.D.Miss.1973), held that Chase owed Ellis no duty under OSHA, because Ellis was not an employee of Chase. The district court adhered to Tennessee's rule of no liability to employees of independent contractors, stating that OSHA and its regulations "do not enlarge the responsibility of [Chase] for the death of ... an employee of an independent contractor and that ... the act does not create a private right of action for violation of its terms."

The plaintiffs argue that, in determining whether Chase owed Ellis a duty under Tennessee law, the district court failed to address a case in which this court held that OSHA imposes a duty on employers with respect to all employees, whether its own or those of an independent contractor. See Teal v. E.I. DuPont de Nemours & Co., 728 F.2d 799 (6th Cir.1984). Plaintiffs' reading of Teal, however, is misguided. The language of Teal does not change the law of this circuit that OSHA does not create a private right of action. See Minichello v. U.S. Industries, Inc., 756 F.2d 26 (6th Cir.1985) (OSHA can never provide a basis for liability); Russell, 494 F.2d at 336 (OSHA does not create a private civil remedy). Teal does establish, however, that, under certain circumstances, an OSHA violation may be conclusive evidence of negligence, or negligence per se.

In Teal, an employee of an independent contractor brought suit against the DuPont company to recover for injuries sustained as a result of an accident occurring at DuPont's plant. DuPont allegedly breached the specific duty imposed on employers by 29 U.S.C. Sec. 654(a)(2), set forth at ...