Gundolf v. Massman-Johnson, MASSMAN-JOHNSON

• Decision Date: 28 October 1971
• Docket Number: MASSMAN-JOHNSON,No. 7273,7273
• Citation: 473 S.W.2d 70
• Parties: Edwin A. GUNDOLF, Appellant, v., a Joint Venture, et al., Appellee.
• Court: Texas Court of Appeals

Page 70

473 S.W.2d 70

Edwin A. GUNDOLF, Appellant, v. MASSMAN-JOHNSON, a Joint Venture, et al., Appellee.

No. 7273.

Court of Civil Appeals of Texas Beaumont.

Oct. 28, 1971.

Motion for Rehearing Overruled Nov. 18, 1971.

Seale & Stover, Jasper, for appellant.

Pike Powers, Jr., Strong, Pipkin, Nelson, Parker & Powers, Beaumont, for appellee.

KEITH, Justice.

The plaintiff below appeals from a take nothing judgment entered in his third-party action for personal injuries received while he was upon defendant's job site. Defendant was the general contractor engaged in the construction of the Toledo Bend Dam upon the Sabine River while plaintiff was an employee of the engineering firm engaged by the owner of the project, being a concrete inspector charged with the responsibility of determining defendant's compliance with the terms and specifications of its contract.

The dam was so constructed that 'weep holes' or drain pipes were placed in the dam to permit built-up pressure within the walls to be relieved during construction. The seepage of water through the weep holes caused green algae to accumulate upon the surface of the tail race of the dam. This accumulation was a matter of general knowledge to the workmen upon the job site, including the plaintiff, and other workmen had received injuries when they slipped and fell upon the slippery surface caused by the presence of the algae.

Under plaintiff's theory of the cause, as supported by his testimony, he was requested to make an inspection of the dam to determine if defendant had properly prepared an area thereof to receive more concrete. Knowing of the dangerous condition of the area because of the presence of the algae thereon, plaintiff requested that the algae be removed so as to eliminate the possibility of danger of injury when he made the requested inspection. According to plaintiff, he was assured by defendant's supervisors that the algae had been cleaned from the area and that it was safe for him to enter upon the dam to make the inspection.

Defendant says in its brief, 'He (plaintiff) knew that despite cleaning, the concrete on the slab remained stained with a 'greenish cast', making it impossible to discern which areas of the slab had been cleaned and those which had not.'

Plaintiff's trial pleadings charged that the defendant 'undertook to remove the substance in question (the algae) from the area in which plaintiff had to work and indicated to plaintiff that such substance had been removed, but defendants negligently failed to remove all of such substance, and such negligence was a proximate cause of plaintiff's injuries.' Without recounting the evidence in detail, it is sufficient to note that the testimony raised the issues submitted under this pleading, namely:

No. 1--Plaintiff slipped on algae on the tail race slab;

No. 2--On the occasion in question defendant 'had agreed to clean the algae off of the tail race slab';

No. 3--Plaintiff came upon the tail race slab 'with the belief that defendant had removed the algae';

No. 4--Defendant 'undertook to clean said algae from the tail race slab';

No. 5--'(D)efendant failed to remove all of the algae from the tail race slab';

No. 6--Such failure was negligence;

No. 7--Which negligence was a proximate cause of the accident.

In Special Issue No. 8, the court placed the burden of proof upon the plaintiff to procure an answer that the area upon the dam site where plaintiff fell was 'not open and obvious'; and, the jury failed to so find, answering: 'It was open and obvious.' ¹ Special Issues Nos. 9, 10, 11 and 12, being conditioned upon a different answer to No. 8, were not answered.

The jury did Not find that plaintiff failed to keep a proper lookout (Issue No. 13), but did find that 'in the exercise of ordinary care, (plaintiff) should have known and appreciated the risk of walking in the area of the damsite where he fell,' and that such 'failure * * * to know and appreciate the risk' was a proximate cause of his fall (Issues Nos. 15 and 16).

In answer to No. 20, the jury did Not find that plaintiff 'knew that algae was on the concrete in the area of the damsite where he was walking'; and, finally, the accident was not the result of an unavoidable accident.

Plaintiff moved for the entry of judgment upon the verdict; or, alternatively, for judgment after disregarding the jury's answers to Special Issues Nos. 8 and 15, such contentions being set forth in the margin. ² Our record does not show that the court acted directly upon plaintiff's motion, but judgment was entered for defendant upon the basis of the jury's findings. Plaintiff's amended motion for new trial, containing the essential elements of his motion for judgment, was overruled by operation of law and this appeal follows. Since defendant has not challenged plaintiff's right to present the points which we now consider, we turn to a discussion of the controlling principles.

We encounter, at the outset of this case, defendant's reliance upon the 'clumsy concept' of 'no duty' (Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 377 (Tex.Sup.1963)) and plaintiff's contention that such doctrine is not applicable under the rationale of Coleman v. Hudson Gas & Oil Corporation, 455 S.W.2d 701, 702 (Tex .Sup.1970). We join with the 1970 court in questioning the 'usefulness of speaking as though there were some special rule in the owner, occupier, general contractor-invitee field requiring the invitee to 'negative no duty." Hudson Oil, supra (455 S.W.2d at p. 702).

We are of the opinion that this facet of the case is controlled by Hudson Oil, supra. The liability of the defendant was not limited to the slippery condition of the tail race when plaintiff came upon the site, 'inasmuch as that was a danger which the plaintiff and all persons present appreciated, (and) defendant owed no further duty to the plaintiff and could not be liable.' Hudson Oil Case (455 S.W.2d at p. 702).

But defendant undertook to clean up the area by removing the algae from the tail race, and having so undertaken to render the area safe, 'it would be required to act with care.' And, the jury having found that plaintiff relied upon defendant's promise to clean the area, and defendant having negligently failed to do so, 'the duty of the defendant was something other than that owed by an occupier with respect to dangerous conditions of the premises.' Id.

Without doing violence to the language used by Justice Reavley in the case under consideration, we paraphrase it so as to be applicable to the case under consideration:

'If defendant engaged in any such activity (of cleaning up the algae on the tail race), it owed a duty of care to plaintiff. If it acted negligently, thereby injuring plaintiff, the defendant would be liable.'

Here plaintiff specifically pleaded that the defendant negligently failed to correct the dangerous condition--and, more importantly, procured jury findings that such negligence was a proximate cause of his injury. Our case is, consequently, the exact converse of the situation prevailing in Hudson Oil, where the court said:

'This is not a case of Coleman coming upon the lease with the belief that Hudson had already performed its promise and removed the gas.'

Our plaintiff came upon the tail race 'with the belief' that defendant had cleaned the algae off the surface--and procured jury findings to that effect.

So holding, plaintiff was under no obligation to negative 'no duty' before imposing liability upon the defendant. Defendant's liability being active, i.e. its failure to correct the dangerous condition after promising that it would, the 'no duty' defense passes out of the case and we are now in position to treat the case as an ordinary negligence case.

Plaintiff was upon the premises where he was injured as a matter of right. It was his duty to inspect the place where defendant was to do additional work upon the dam site to determine if the area was ready to accept additional concrete. If he 'found a form that was faulty I could refuse to approve it for pouring' of this concrete. He amplified this authority in this manner:

'If the placing in the area where the concrete was going to be placed did not come up to reasonable specifications, I could call a halt to the placing of the concrete until it was made ready. If there was dirt, debris, trash, wood, fallen matters of any nature into that area, yes, I had the authority to stop the placing of concrete until it was cleaned up.'

He was 'the last man to sign the card before the concrete could be poured * * * (and) if (he) didn't sign it, it couldn't be poured.' ³

Plaintiff argues that he was 'owed a degree of care similar to that owed to invitees because they were (he was) on premises as a matter of right.' Rabb v. Coleman, 469 S.W.2d 384 (Tex.Sup.1971). We agree, but, as was said in Rabb, supra:

'Volenti is an affirmative defense to any negligence action in which defendant is responsible for a dangerous condition (static or non-static) or activity of which the plaintiff knows, appreciates the danger and voluntarily exposes himself thereto. It is a separate concept from 'no duty' and the applicability of one is not determined by applicability of the other.'

The answers of the jury to Special Issues Nos. 15 and 16, quoted above, simply show that the plaintiff 'in the exercise of ordinary care' should have known and appreciated the risk of walking on the dam site in the area where he fell. But, as said by Justice Greenhill in Halepeska, supra (371 S.W.2d at p. 381):

'On the basis of Wood v. Kane Boiler Works, (150 Tex. 191, 238 S.W .2d 172) and cases following it, therefore, for Volenti to be applicable, there must be Actual knowledge and appreciation; or the danger must be so open and obvious that the plaintiff is charged in law with knowledge and appreciation thereof. So the plaintiff must Know (an issue of fact, usually) or be charged in law with knowledge and appreciation. That being...