Gonzales v. Alman Const. Co.

• Court: Court of Appeals of Tennessee
• Citation: 857 S.W.2d 42
• Parties: 1993 O.S.H.D. (CCH) P 30,011 James Franklin GONZALES and wife, Amber Raye Gonzales, Plaintiffs-Appellees, v. ALMAN CONSTRUCTION COMPANY, Defendant-Appellant.
• Decision Date: 27 January 1993

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857 S.W.2d 42 1993 O.S.H.D. (CCH) P 30,011 James Franklin GONZALES and wife, Amber Raye Gonzales,
Plaintiffs-Appellees,
v.
ALMAN CONSTRUCTION COMPANY, Defendant-Appellant. Court of Appeals of Tennessee,
Middle Section, at Nashville. Jan. 27, 1993.
Application for Permission to Appeal
Denied by Supreme Court
June 7, 1993.

David Randolph Smith, Kinnard & Smith, Nashville, for plaintiffs-appellees.

Ronald G. Harris, Neal & Harwell, Nashville, for defendant-appellant.

OPINION

LEWIS, Judge.

We granted defendant's, Alman Construction Company (Alman), application for permission to appeal pursuant to Tennessee Rule of Appellate Procedure 9 to review the trial court's action in overruling defendant's motion to dismiss the plaintiffs', James Franklin Gonzales and his wife, Amber Raye Gonzales, common law actions against Alman.

Alman insists that plaintiff James Franklin Gonzales' exclusive remedy for injuries he received in the course and scope of his employment with Alman is under the Tennessee Workers' Compensation Act, Tennessee Code Annotated, Section 50-6-101, et seq. We agree, and reverse the trial court's refusal to dismiss.

The pertinent facts are as follows:

On 21 November 1990, plaintiff James Franklin Gonzales was injured while working as an employee of Alman Construction Company. Plaintiff was a member of a construction crew on a sewer construction project for the Metropolitan Government of Nashville and Davidson County, Tennessee. Jerry Wilson Anderson was Alman's foreman who was supervising plaintiff Gonzales and several other employees on that date. The construction crew had used explosives to excavate a ditch where the sewer line was to be laid. Immediately prior to the accident in which Mr. Gonzales was injured, Mr. Anderson instructed Mr. Gonzales and another Alman employee, Robert Wetterau, to go back into the ditch and dislodge a piece of rock that lay in the path where the sewer line was to be laid. Mr.

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Gonzales started using a pavement breaker to dislodge rock and, in doing so, apparently hit an undetonated blasting cap. It exploded and Mr. Gonzales lost his leg.

Plaintiff Gonzales had no training, certification or education in blasting activities. He was hired as a pipe layer. The tools of his trade were a shovel and a strong back. He did not have a blasting card as required by Tennessee Code Annotated, Section 68-105-106. In fact, none of the persons who were using dynamite on the job site on 21 November were registered, accredited, or licensed to possess or use dynamite as required by the laws and regulations of the State of Tennessee. Tenn.Code Ann. § 68-105-106. The persons using the dynamite to blast on that date, including plaintiff Gonzales, were all unskilled and untrained in the use of dynamite in blasting.

It is alleged, and not denied, that because the blasting crew did not know how to conduct safe blasting operations, they did not use the correct blasting caps and did not use the correct type of detonator cord. The result was that the crew successfully detonated the dynamite sticks but had no way of counting the explosions to assure that the number of sticks that had been wired actually exploded.

After setting off a blast that had been wired with multiple sticks of dynamite, a portion of rock remained in the hole. After an attempt to break the rock with a backhoe did not succeed, Mr. Gonzales was directed by Jerry Wilson Anderson to return to the hole and jackhammer the rock. Mr. Gonzales returned to the hole to jackhammer the rock and, in doing so, came in contact with or in close proximity to a stick of dynamite and a blasting cap which had not been detonated. There was an explosion and plaintiff was injured.

Plaintiffs' complaint alleges that Alman had a long history of TOSHA violations relating to blasting and the use of explosives. The affidavit of Chris Heglar, Industrial Safety Specialist with the Department of Labor, Division of Tennessee Occupational Safety and Health Administration, included as an exhibit a report prepared by a Bureau of Alcohol, Tobacco and Firearms investigator, dated 5 December 1990, which stated that "[t]he State has been citing Alman since January 2, 1985." The President of Alman had been previously warned concerning the deficiencies and the use of explosives prior to 21 November 1990 and it was the opinion of the State inspector that Alman was in willful violation of state blasting safety regulations on 21 November.

Alman's sole issue is: "Whether the plaintiff-employee's common law action against the defendant employer for his work-related injuries is barred by the exclusive remedy provision of the Tennessee Workers' Compensation Law, TENN.CODE ANN. § 50-6-108."

Alman filed a motion to dismiss plaintiffs' complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6). In support of its motion to dismiss, Alman submitted the affidavits of Jerry Wilson Anderson, G.W. Field and Robert Behnke. When matters outside the pleadings are presented, the motion may be sustained as a motion to dismiss, or, if evidence be considered, it may be treated as a motion for summary judgment and disposed of as provided in Tennessee Rule of Civil Procedure 56. Tenn.R.Civ.P. 12.02.

If the complaint fails to state a claim for which relief may be granted, the motion to dismiss should be sustained without considering evidence.

Summary judgments are an efficient means to conclude cases that can be disposed of on legal issues alone. Bellamy v. Federal Express Corp., 749 S.W.2d 31, 33 (Tenn.1988); Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550 (Tenn.1981). Summary judgments are not substitutes for trials. Jones v. Home Indem. Ins. Co., 651 S.W.2d 213, 214 (Tenn.1983). However, they go to the merits of the complaint and should not be taken lightly. Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn.1978).

No presumption of correctness attaches to decisions granting summary judgment because they involve only questions of law. Thus, on appeal we must make a

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fresh determination concerning whether the requirements of Tennessee Rule of Civil Procedure 56 have been met. Hill v. City of Chattanooga, 533 S.W.2d 311, 312 (Tenn.App.1975). In doing so, we must consider the pleadings and the evidentiary materials in the light most favorable to the movant's opponent and we must draw all reasonable inferences in the opponent's favor. Blocker v. Regional Medical Ctr., 722 S.W.2d 660 (Tenn.1987).

Generally, summary judgment is not appropriate in negligence actions. Bowman v. Henard, 547 S.W.2d 527 (Tenn.1977). The procedure was designed to provide a quick, inexpensive means of concluding cases on issues as to which there is no dispute regarding material facts, but was in no wise designed for the trial of factual issues. It can be granted only when the pleadings, stipulations, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Phillips v. Pittsburgh Consol. Coal Co., 541 S.W.2d 411 (Tenn.1976); Evco Corp. v. Ross, 528 S.W.2d 20 (Tenn.1975).

In determining whether or not a genuine issue of fact exists in a summary judgment case, we must look at all the evidence, take the strongest legitimate view of it in favor of the opponent of the motion and allow all reasonable inferences from it in his favor, discard all countervailing evidence, and if then there is any dispute as to any material determinative evidence or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. Tenn.R.Civ.P. 56.03; Berry v. Whitworth, 576 S.W.2d 351 (Tenn.App.1978).

In the instant case, Alman argues that it is entitled to summary judgment as a matter of law because the plaintiffs' common law action is barred by the exclusive remedy provision of the Tennessee Workers' Compensation Act.

The plaintiff insists that Alman, as his employer, may be held responsible for his injuries under common law if the injury is not accidental but is the result of an intentional injury. Plaintiff further argues that for the exclusive injury...