Hooper v. Pizzagalli Const. Co.

• Citation: 112 N.C.App. 400,436 S.E.2d 145
• Decision Date: 02 November 1993
• Docket Number: No. 9214SC126,9214SC126
• Court: Court of Appeal of North Carolina (US)
• Parties: Kimberly H. HOOPER (Widow) and Reverend Jerry Hooper (Father) Administrators of the Estate of Timothy Nelson Hooper, Plaintiffs, v. PIZZAGALLI CONSTRUCTION CO., Acme Plumbing and Heating, Inc., West Durham Mechanical, Inc. (Formerly Comfort Engineers, Inc.), Defendants.

Page 145

436 S.E.2d 145

112 N.C.App. 400

Kimberly H. HOOPER (Widow) and Reverend Jerry Hooper (Father) Administrators of the Estate of Timothy Nelson Hooper, Plaintiffs, v. PIZZAGALLI CONSTRUCTION CO., Acme Plumbing and Heating Inc., West Durham Mechanical, Inc. (Formerly Comfort Engineers, Inc.), Defendants.

No. 9214SC126.

Court of Appeals of North Carolina.

Nov. 2, 1993.

Currin and Watson, P.A., by John W. Watson, Jr., Oxford, for plaintiff-appellant.

M. Lynette Hartsell, Graham, for plaintiff-appellant.

W. Phillip Moseley, Graham, for plaintiff-appellant.

Newsom, Graham, Hedrick, Bryson & Kennon, by Joel M. Craig, Durham, for defendant-appellee Acme Plumbing & Heating, Inc.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Robert W. Griffin and Kari Lynn Russwurm, Raleigh, for defendant-appellee Pizzagalli Const. Co.

Nye, Phears & Davis, by Charles B. Nye, C. Howard Nye, and William J. Wolf, Durham, for defendant-appellee West Durham Mechanical, Inc.

JOHNSON, Judge.

The facts pertinent to this appeal are as follows: Defendant Pizzagalli, as general contractor, executed a contract for the construction of Anylan Towers, with the owner of Duke University Medical Center. Defendant West Durham executed a subcontract agreement to provide heating, ventilation and air conditioning with the general contractor, and defendant Acme executed a subcontract agreement to provide plumbing with the general contractor.

On 6 July 1988, twenty-four year old Mr. Timothy Hooper and twenty-one year old Mr. Jimmy Rigsbee, employees of Acme, were sent to the seventh floor interstitial area on the project site to place a flange in a large valve. Unknown persons placed an unsecured scaffold board with the name "Comfort" painted on it across two I-beams leading to the duct installed by West Durham near the site of the valve. Mr. Hooper and Mr. Rigsbee performed their work thirteen feet above concrete, while standing on the scaffold board. Mr. Hooper and Mr. Rigsbee decided to work from the scaffold board in order to reach and tighten the bolts on the side of the valve opposite the uncompleted catwalk. There were no guardrails on the board and neither Mr. Hooper nor Mr. Rigsbee was secured.

Upon completion of the task, Mr. Rigsbee left the scaffold board and began to gather his tools on the solid concrete pad about twenty feet from the scaffold board. Mr. Hooper went back to the scaffold. Mr. Rigsbee looked up just as Mr. Hooper attempted to step off of the scaffold and onto the catwalk. At that time, the scaffold board began to slide and the board and Mr. Hooper began to fall. Mr. Hooper reached out and momentarily grabbed the metal toeboard of the catwalk. The toeboard bent and he rolled off, falling thirteen feet onto the concrete floor, landing on his back. Mr. Hooper was rushed to Duke Hospital where he was treated for severe head injury. He died on 8 July 1988.

The incident was reported to the Occupational Safety and Health Administration (OSHA) by Mr. Bob Carter, site superintendent for Acme. The scene of the fall was investigated by Mr. James Hall, a Safety Compliance Officer for OSHA, on 12 July 1988. At the conclusion of the investigation, Acme was cited for three non-serious and four serious violations of the OSHA and fined $50. On 3 July 1990, plaintiffs initiated this action for the wrongful death of the decedent.

By plaintiffs' first assignment of error, plaintiffs contend that the trial court committed reversible error by granting defendant Pizzagalli's motion for summary judgment because plaintiffs' forecast of evidence through pleadings, affidavits and depositions established the duty of defendant Pizzagalli and the subsequent breach of that duty which was the proximate cause of decedent's death.

The Courts of North Carolina have long recognized that a general contractor is not liable for injuries sustained by a subcontractor's employees. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). North Carolina law provides that a general contractor does not have a duty to furnish a subcontractor or the subcontractor's employees with a safe place in which to work. Brown v. Texas Company, 237 N.C. 738, 76 S.E.2d 45 (1953). Instead, it is the duty of the subcontractor to provide himself and his employees with a safe place to work and, also, to provide proper safeguards against the dangers of the work. Id.

However, North Carolina does recognize a few exceptions to the general rule of no liability. These exceptions are: (1) situations where the contractor retains control over the manner and method of the subcontractor's substantive work, (2) situations where the work is deemed to be inherently dangerous, and (3) situations involving negligent hiring and/or retention of the subcontractor by the general contractor. Woodson, 329 N.C. 330, 407 S.E.2d 222. In the case sub judice, plaintiffs can recover from Pizzagalli only if plaintiffs' forecast of evidence establishes that the circumstances surrounding the decedent's accidental death place plaintiffs' claim within one of the aforementioned exceptions.

Plaintiffs contend that this action falls within two of the three exceptions. Plaintiffs argue that defendant Pizzagalli maintained sufficient control over the manner and method of Acme's work, and had a nondelegable duty to insure the safety of the decedent because scaffolding was an inherently dangerous activity.

In considering this argument, we will address each exception and its applicability. Plaintiffs argue that defendant Pizzagalli retained sufficient control over the manner and method of defendant Acme's work, and as a result, defendant Pizzagalli should be held liable for its negligence. In Woodson, the North Carolina Supreme Court specifically stated that "one who employs an independent contractor is not liable for the independent contractor's negligence unless the employer retains the right to control the manner in which the contractor performs his work." Woodson, 329 N.C. at 350, 407 S.E.2d at 234.

In the instant case, the record establishes that defendant Pizzagalli did not retain the right to control the method and manner in which defendant Acme and its employees performed their job. The subcontract agreement between defendant Pizzagalli and defendant Acme reveals that defendant Acme was hired as a subcontractor to perform plumbing work. Pursuant to the contract defendant Acme was to provide all labor, materials, tools, and equipment necessary to perform the work. While defendant Pizzagalli maintained a supervisory role and defendant Acme was expected to comply with the plans and specifications of the overall project, defendant Acme was free to perform its job according to its own independent skill, knowledge, training, and experience.

In Denny v. City of Burlington, 155 N.C. 33, 70 S.E. 1085 (1911), the Court stated:

The proprietor may make himself liable by retaining the right to direct and control the time and manner of executing the work or by interfering with the contractor and assuming control of the work, or of some part of it, so that the relation of master and servant arises, or so that an injury ensues which is traceable to his interference [.] ... But merely taking steps to see that the contractor carries out his agreement, as, having the work supervised by an architect or superintendent, does not make the employer liable, nor does reserving the right to dismiss incompetent workmen.

Id. at 38, 70 S.E. at 1087. The record indicates that Pizzagalli had a general supervisory role, but did not interfere with Acme's work or any part of its work so as to retain control and thereby make itself liable. As such, this argument is meritless.

Plaintiffs also argue that the work being performed by the decedent in conjunction with the use of the scaffold was an inherently dangerous activity, and therefore, defendant Pizzagalli had a non-delegable duty to provide for the safety of others.

The law in North Carolina states that "[o]ne who employs an independent contractor to perform an inherently dangerous activity may not delegate to the independent contractor the duty to provide for the safety of others[.]" Woodson, 329 N.C. at 352, 407 S.E.2d at 235. An inherently dangerous activity is defined as work to be done from which mischievous consequences will arise unless preventative measures are adopted, Greer v. Construction Co., 190 N.C. 632, 130 S.E. 739 (1925), and that which has "a recognizable and substantial danger inherent in the work, as distinguished from a danger collaterally created by the independent negligence of the contractor, which later might take place on a job itself involving no inherent danger." Woodson, 329 N.C. at 351, 407 S.E.2d at 234.

In the instant case, the record reveals that Acme was hired to perform plumbing work. At the time of the accident, the decedent was working on a valve located on the seventh floor interstitial area of the project. The record reveals that the decedent and his co-worker Rigsbee used a scaffold to better reach the valve. The decedent and Rigsbee stood on the scaffold thirteen feet off the ground and did not properly secure the scaffold board or take any other precautions. Use of a scaffold in conjunction with the plumbing work was not set out in the contract. As a result, use of the scaffold by the decedent and Rigsbee was totally collateral to the work as contracted. No recovery may be allowed for an injury resulting from an act or fault purely collateral to the work and which arises entirely from the wrongful act of the independent contractor or his employees. Evans v. Elliott, 220 N.C. 253, 259, 17 S.E.2d 125, 128 (1941); Goolsby v. Kenney, 545 S.W.2d 591, 594 (1976).

In addition, we find that the nature of plumbing work does not have any substantial and recognizable dangers inherent in the work. Although North Carolina has not directly addressed the issue of whether plumbing is an inherently dangerous activity, other...