Gossett v. Twin County Cable T.V., Inc.

• Decision Date: 14 February 1992
• Parties: Ray GOSSETT and Amy Gossett v. TWIN COUNTY CABLE T.V., INC., and Ron Nunnelly d/b/a Southeastern Communications. 1901088.
• Court: Alabama Supreme Court

Page 635

594 So.2d 635

Ray GOSSETT and Amy Gossett v. TWIN COUNTY CABLE T.V., INC., and Ron Nunnelly d/b/a Southeastern Communications.

1901088.

Supreme Court of Alabama.

Feb. 14, 1992.

P. Russell Tarver of Cherry, Givens, Tarver, Peters, Lockett & Diaz and Elizabeth R. Jones, Birmingham, for appellants.

Michael S. Jackson of Beers, Anderson, Jackson & Smith, P.C. and Randall Morgan of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellees.

KENNEDY, Justice.

Ray Gossett and Amy Gossett sued Twin County Cable T.V., Inc. ("Twin County"), Ron Nunnelly d/b/a Southeastern Communications ("Nunnelly"), Cornelius Maddox, Time Manufacturing Company, Inc., Easley Equipment Company, Inc., and various fictitiously named parties on claims by Mr. Gossett of negligence and product defects and on a claim by Mrs. Gossett of loss of consortium.

With respect to Nunnelly and Twin County, the Gossetts alleged that Mr. Gossett ("Gossett") was an employee of Nunnelly and an employee/servant of Twin County. Gossett averred that these relationships imposed on Nunnelly and Twin County a duty to maintain a safe workplace for Gossett, that they had breached that duty, and that the breach had resulted in injury to Gossett. Both Nunnelly and Twin County moved for a summary judgment, alleging that Gossett had been contributorily negligent.

The trial court held that Gossett was an employee of Nunnelly, but an independent subcontractor of Twin County. The trial court further held that Gossett was the cause of his own injuries and entered a summary judgment for Nunnelly and a summary judgment for Twin County. Those judgments were made final pursuant to Rule 54(b), A.R.Civ.P., and from those judgments Gossett appeals.

Undisputed evidence in this case discloses that Gossett worked for Nunnelly, the owner of Southeastern Communications. In turn, Nunnelly's company was engaged by Twin County to work on the installation of a cable television system in Montgomery County. Nunnelly's crew on this project consisted of himself, Gossett, and Ray Salter.

On August 28, 1988, Nunnelly, Gossett, and Salter were on a job site splicing cable and running cable to houses. Nunnelly became ill and left the job site for the day, giving specific instructions to Gossett that he was not to "run cable strand." This task involved attaching a cable strand to a telephone pole and then stringing the cable strand between adjacent poles. Nevertheless, after Nunnelly left the job site Gossett began to "run cable strand." Gossett's reason for doing this is disputed. Gossett testified that after Nunnelly departed, Twin County's sole representative on the site, Bob Garner, became agitated when Gossett told Garner that he was not to run cable strand at that job site. Gossett testified that Garner was "the main boss" on the project and that Garner ordered him to run cable strand anyway. Nunnelly testified that he had previously advised Garner that his crew would not run cable strand at that site. Garner said he did not recall either conversation. It is not disputed that at the time of the accident Gossett was engaged in the forbidden activity of running cable strand at that site.

Specifically, Gossett parked his truck, which was equipped with a lift bucket, beside a telephone pole along a roadway and then entered the lift bucket with some cable strand. The cable strand was positioned across the roadway toward a second pole, and then under Gossett's truck, and from there it was looped loosely in front of Gossett in the lift bucket. Gossett engaged the lift bucket, which then climbed to a height that reached the uppermost portion of the pole. At this point, one end of the cable was in front of Gossett in the lift bucket and it ran under his truck and across the roadway to the other end. To prepare the pole for the attachment of the cable strand, Gossett began drilling a hole through the pole. At that time Salter was on the ground below Gossett to act as a traffic flagman along the roadway, although he held no flag. In addition, two orange safety cones had been set out to alert traffic. The evidence was disputed as to whether Gossett and Salter had available any additional safety devices.

Gossett testified that as an alternative to taking the cable strand up in the bucket to await attachment while he prepared the pole, he could have first prepared the pole without the cable strand in the bucket and then descended to pick up the cable strand once the pole was ready. This method would have reduced the time the cable strand was in front of his body awaiting placement.

As Gossett was drilling the hole, a recreational vehicle drove over the cable strand in the roadway, accidentally snagging the cable strand and, in turn, causing the cable strand to tighten in front of Gossett. The ensnared cable strand then pulled Gossett from the bucket to the pavement below as the recreational vehicle continued down the roadway with the cable strand attached to its under-carriage. As a result, Gossett suffered substantial physical injuries.

On Nunnelly's and Twin County's respective motions for summary judgment, the trial court held that there existed no genuine issue of material fact and ruled on matters of law in favor of Nunnelly and Twin County.

The standard for granting a summary judgment motion is that the court must conclude "that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." A.R.Civ.P. 56(c). The burden of establishing that there exists no genuine issue of material fact is on the moving party. Once the moving party has made a prima facie showing that there is no genuine issue of material fact, the burden shifts to the opposing party to establish a genuine issue of material fact. Stephens v. City of Montgomery, 575 So.2d 1095, 1097 (Ala.1991).

In cases commenced after July 11, 1987, as was this case, in order to survive a defendant's motion for summary judgment, a plaintiff must overcome the defendant's prima facie showing by the plaintiff's own showing of "substantial evidence." Ala.Code 1975, § 12-21-12. This Court has defined "substantial evidence" as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

No presumption of correctness attaches to a summary judgment, and our review of such a judgment is de novo. Hightower & Co. v. United States Fidelity & Guar. Co., 527 So.2d 698 (Ala.1988).

Issues relating to Nunnelly

Gossett argues that the trial court erred in entering the summary judgment for Nunnelly because, Gossett says, as a matter of law it was foreseeable by Nunnelly that Gossett would disobey his instructions and, therefore, Gossett says, Nunnelly had a duty to take appropriate steps to create safe work conditions through training, supervision, and adequate traffic controls. However, we find no evidence that Gossett's actions were foreseeable by Nunnelly, and thus no evidence that Gossett was within the sphere of his employment with Nunnelly at the time of the accident.

Nunnelly's only knowledge that Gossett had accepted direction from Garner previously related to the tasks of wiring houses or unloading a truck. This had occurred infrequently. Gossett had not previously run cable strand on the project, and Nunnelly, on the day of the accident, had specifically told him not to. The evidence was that Gossett was a "good worker" and had always followed Nunnelly's instructions. There was no evidence to suggest that Nunnelly should have foreseen that Gossett would disobey the direct order not to run cable strand.

Wilful violations of an employer's orders limiting the sphere of the employee's employment can create a bar to recovery. Johnson v. Brinker, 289 Ala. 240, 243, 266 So.2d 851 (1972) (analyzing the statutory codification of this common law rule).

If an employee "voluntarily undertakes to do work about which he had no duties to perform by virtue of the contractual relation existing between him and his employer, then, while such condition exists, the duty ... of using care for [the employee's] safety does not rest on the employer." Southern Ry. v. Guyton, 122 Ala. 231, 240, 25 So. 34, 37 (1899).

In the present case, it is undisputed that Nunnelly specifically limited the sphere of Gossett's employment on the day of the accident to tasks other than running cable strand. Gossett wilfully undertook to run cable strand anyway. In so doing, Gossett went outside the sphere of his employment, and Nunnelly, therefore, was absolved of a duty to provide him a safe workplace at the time of the accident. See, Doby v. Layton, 210 Ala. 303, 305, 98 So. 9 (1923).

Issues relating to Twin County

Gossett argues that the trial court erred in entering the summary judgment in favor of Twin County because, he argues, he presented sufficient evidence to create a jury question on the issue of Twin County's duty to provide a safe workplace and the issue of contributory negligence. We agree.

First, Gossett contended in the trial court that the relationship between him and Twin County was that of servant and master, thereby charging Twin County with a duty to provide a reasonably safe workplace. We have stated:

"Under the common law the master is responsible for his own negligence and want of care and this may appear from his failure to furnish proper machinery and materials for the work, or from the employment of incompetent servants, or from a failure to make proper rules or establish a proper method for the conduct of his business."

Chamberlain v. Southern Ry., 159 Ala. 171, 175, 48 So. 703 (1909). An employer/master has a duty to provide employees/servants with a reasonably safe...