Giarratano v. Weitz Co.

• Decision Date: 10 January 1967
• Docket Number: No. 52089,52089
• Parties: Joseph GIARRATANO, Administrator of the Estate of Erwin A. Giarratano, Deceased, Appellant, v. The WEITZ COMPANY, Inc., Appellee.
• Court: Iowa Supreme Court

Page 824

147 N.W.2d 824

259 Iowa 1292

Joseph GIARRATANO, Administrator of the Estate of Erwin A. Giarratano, Deceased, Appellant, v. The WEITZ COMPANY, Inc., Appellee.

No. 52089.

Supreme Court of Iowa.

Jan. 10, 1967.

Fairall & Kilbride, Marshalltown, and Lundy, Butler, Wilson & Hall, Eldora, for appellant.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee.

MASON, Justice.

This is a law action to recover damages for wrongful death of an 18-year-old boy who fell 80 feet from a roof under construction at the Iowa Electric Light & Power Company near Marshalltown on June 7, 1960, and suffered fatal injuries. Plaintiff is administrator of Erwin A. Giarratano's estate.

Defendant, The Weitz Company, Inc., an Iowa corporation, was engaged as principal contractor to construct an addition to a building for the light company under a written contract between defendant and the property owner. Plaintiff's decedent was an employee of Anning-Johnson Company, a subcontractor engaged by defendant to construct and apply a poured gypsum roof for the building addition.

Plaintiff pleaded as basis for recovery a breach of contract theory in division one of his petition as amended and a tort theory in division two.

At the conclusion of the evidence the court submitted the tort theory to the jury but refused to submit the breach of contract theory.

The jury returned a verdict of $75,000 for plaintiff which the court set aside on defendant's motion for judgment notwithstanding the verdict. Plaintiff appeals.

I. The appeal presents two main questions: (1) Did the trial court err in sustaining defendant's motion and entering judgment for defendant? and (2) In the alternative, did the court err in (a) excluding certain evidence, (b) failing to submit the breach of contract theory and (c) failing to submit the no eyewitness rule?

In Division I of its motion defendant moved that the verdict and judgment in favor of plaintiff be set aside and judgment be entered in its favor and against plaintiff because the movant was entitled to have a verdict directed for it at the close of all the evidence, did move therefor and the jury did not return such verdict in favor of defendant.

Plaintiff assigns as errors relied on for reversal the sustaining of defendant's motion on the grounds (1) defendant owed no duty to and had no control over the safety of plaintiff's decedent, (2) defendant was not negligent as a matter of law, (3) any negligence of defendant was not the proximate cause of the accident, as a matter of law, (4) plaintiff failed to generate a jury question on decedent's freedom from contributory negligence, and (5) decedent had, as a matter of law, assumed the risk.

II. The court submitted as specifications of defendant's negligence (a) permitting plaintiff's decedent to work for Anning-Johnson under extremely hazardous conditions, (b) failing to provide a reasonably safe place for the work, and (c) failing to provide scaffolding and to properly and timely lay wire mesh after the asbestos board was laid.

III. Plaintiff's decedent, Erwin A. Giarratano, graduated from high school in Marshalltown June 5, 1960. Two days later he went to the light company's job site looking for temporary employment. Anning-Johnson, the roofing subcontractor hired Erwin to begin work at once. He had never done work of the type he was employed to do on June 7.

We are told the process of roof construction is as follows: There are steel girders or I beams every eight feet, which are a part of the structure itself. The I beams are about six inches high and eight inches across the top and bottom. 'Bulb-tees' are placed atop and perpendicular to the I beams, spaced 32 inches apart and welded. The bulb-tees are steel rails about two inches in height with a three-inch flange at the bottom. After the bulb-tees are welded, pieces of 32 4 asbestos form boards are laid between the bulb-tees so as to rest on the flange at the bottom. The form board is brittle and will not support a man's weight. Next, wire mesh and strips 3 1/2 or 4 feet wide are rolled over the steel and form boards. Finally, the gypsum in a slush form is pumped from the ground onto the roof and spread to a thickness of about two inches above the top of steel and wire. It hardens in 12 to 15 minutes.

The area to which Anning-Johnson was to apply a roof deck at the 80-foot level was approximately 35 feet north and south and 70 feet east and west. Before it undertook construction of the gypsum roof, the steel work was already in place and the bulb-tees were in place and welded; a temporary platform for storing materials and as a solid area to walk on after a person had climbed a stairway at the northeast corner of the structure, had been installed. This platform consisted of wood planks clear across the north and extending approximately five feet south of the north edge of the roof. The planking had not been furnished by the Anning-Johnson crew. The crew had unloaded material June 6 but did not work on the roof.

The day of Erwin's death the crew began working at 7:30 a.m. For about the first hour Erwin worked on the ground, preparing the gypsum for pouring. When one of the workers on the roof decided he would rather work on the ground, Anning-Johnson's foreman asked the ground crew if any of them would go to the roof to work. Erwin said, 'I will try anything once.' The view to the south up to the 80-foot level was partially obstructed to persons climbing the stairs by steel grating, temporary wood flooring and equipment. When Erwin went to the roof about 9 a.m. the process of laying form boards between the bulb-tees, rolling wire over the form boards and pouring gypsum had been completed in an area about ten feet wide, just south of the wood planked area. This finished gypsum surface paralleled the wood planks from the east to west of the roof and formed a solid walking surface from east to west for 15 feet south of the north edge of the roof.

Besides Erwin these co-employees were working on the roof that morning: George Linam, the foreman, Otto Ratajesak, Harold Comisky, Phillip Berry and Richard Swenson. The superintendent, Dewey Forman, was also there part of the time. Ratajesak helped organize and supervise the work and did various jobs. At the time of the accident Comisky was laying form boards south of the poured area. Erwin, Swenson and Berry were carrying boards from the northeast edge of the roof to him.

Plaintiff contends Erwin either slipped on a bulb-tee or tripped on wire and fell through a form board which was yet unprotected by wire or gypsum. The fall occurred about 15 feet south of the poured slab at approximately the middle of the roof. He fell from the 80-foot level onto a housing for a turbine standing 25 feet above the ground.

IV. Plaintiff's contentions as to granting the judgment notwithstanding the verdict are concerned with the duty that Weitz, the general contractor, owed to plaintiff's decedent; whether it was negligent in the performance of its duty; proximate cause; freedom from contributory negligence and assumption of risk.

Conceding that Anning-Johnson was an independent contractor and that generally one who employs this type of contractor is not liable for the latter's torts, plaintiff argues exceptions to the rule applicable here include retained control, positive responsibility, unreasonable risk and special danger in work and duty to invitee. He maintains there is substantial evidence of existence of each of these exceptions here which would permit a jury to find there was a duty owed by defendant to decedent so as to make it liable.

In considering whether defendant's motion for judgment notwithstanding the verdict should have been sustained, we view the evidence in the light most favorable to plaintiff. Davidson v. Cooney, Iowa, 147 N.W.2d 819, filed January 10, 1967.

In support of the first exception plaintiff relies on Weitz's retained control over the safety aspects of the entire job including the roof deck as evidenced by article 12 of the written contract with the light company and defendant's actual assumption of this control.

Article 12 (exhibit 2) provided in part as follows:

'The contractor shall take All necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions of federal, state, and municipal safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. He shall Erect and properly maintain at all times, as required by the conditions and progress of the work, all Necessary safeguards for the protection of workmen and the public and shall post danger signs warning against the hazards created by such features of construction as protruding nails, hod hoists, well holes, elevator hatchways, scaffolding, window openings, stairways and falling materials, and he shall Designate a responsible member of his organization on the work, whose duty shall be the prevention of accidents. The name and position of the person so designated shall be reported to the architect by the contractor' (emphasis supplied).

Plaintiff contends defendant thus had specific safety responsibilities in connection with the roof which necessarily included the duty to control Anning-Johnson so far as safety of the workmen was concerned; that this duty was a positive responsibility and not delegable.

In maintaining defendant assumed control in fact over safety procedures, plaintiff refers to the testimony of John Lusk, defendant's job superintendent, who described the building addition as 'a hard hat job * * * which means you are not allowed in the working area without a hard hat on.' He testified, 'Anyone who came on the job, to my knowledge, didn't go out without a hard hat on. * * * The hard hat order that I put into effect applied to all personnel coming on the job, including Anning-Johnson personnel. * * * If I...