Horn v. C.L. Osborn Contracting Co., 77-1112

• Decision Date: 16 March 1979
• Docket Number: No. 77-1112,77-1112
• Parties: 7 O.S.H. Cas.(BNA) 1256 Johnnie L. HORN, Plaintiff-Appellant, v. C. L. OSBORN CONTRACTING COMPANY, Defendant-Third-Party Plaintiff- Appellee-Cross-Appellant, v. BAMA UTILITY CONTRACTORS, INC., Third-Party Defendant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 318

591 F.2d 318

7 O.S.H. Cas.(BNA) 1256

Johnnie L. HORN, Plaintiff-Appellant, v. C. L. OSBORN CONTRACTING COMPANY, Defendant-Third-Party Plaintiff- Appellee-Cross-Appellant, v. BAMA UTILITY CONTRACTORS, INC., Third-Party Defendant-Cross-Appellee.

No. 77-1112.

United States Court of Appeals Fifth Circuit.

March 16, 1979.

Rehearing and Rehearing En Banc Denied May 7, 1979.

Billy E. Moore, J. Sherrod Taylor, B. Randall Blackwood, Columbus, Ga., for Johnnie L. Horn.

S. E. Kelly, Ernest Kirk, II, Columbus, Ga., for Osborn Contracting Co.

Richard A. Marchetti, Columbus, Ga., for Bama Utility.

Appeals from the United States District Court for the Middle District of Georgia.

Before MORGAN, RONEY and VANCE, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

This appeal ¹ concerns primarily an action for damages by Johnnie L. Horn (Horn), an employee of Bama Utility Contractors, Inc. (Bama), against C. L. Osborn Contracting Company (Osborn) for on-the-job injuries.

FACTS

The Board of Water Commissioners of the City of Columbus, Georgia contracted with Osborn, as a general contractor, to construct certain improvements in its sewer system. Osborn thereafter subcontracted a portion of the work to Bama. Bama was furnished with a copy of the plans and specifications applicable to the area where Bama was to perform its subcontract work together with a design plan which had been supplied to Osborn by the Board of Water Commissioners. Thereafter Bama used its own equipment and employees in carrying out its work and Osborn provided no equipment or employees with respect thereto. ² At all times mentioned herein the plaintiff, Horn, was an employee of Bama and was directly supervised by other employees of Bama. His work consisted of the laying of sewer pipe in an excavation or ditch. While so employed he sustained personal injuries on two separate occasions. On July 2, 1974, while Horn was working in a ditch excavated to a depth of approximately 16 feet, the sides of the ditch caved in causing Horn certain personal injuries. Having recovered from the injuries sustained in that incident, Horn returned to his job and was working on the same project in another ditch approximately 9 feet deep when, on October 9, 1974, he sustained additional personal injuries when the sides of this ditch caved in.

Horn concedes that he was an employee of Bama, and not of Osborn and that the relationship of Bama to Osborn was that of an independent contractor. Furthermore, Horn concedes that because of the injuries above referred to, he has received the benefits provided by the Workmans Compensation insurance coverage carried by Bama. In this action Horn seeks to recover general damages from the general contractor Osborn.

Osborn, under an indemnity provision contained in the subcontract, filed a third party action against Bama claiming a contingent right to recover against Bama in the event of any recovery by Horn against Osborn.

The district court granted a motion for summary judgment filed by Osborn and further granted the motion for summary judgment filed by Bama, reasoning, as to the latter, that since any liability of the Third Party Defendant Bama is contingent upon Osborn's liability the motion filed by Bama must also be sustained.

DISCUSSION

Georgia law applies in this case and Ga.Code Ann. § 105-501 provides:

The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and is not subject to the immediate direction and control of the employer.

There are, however, certain statutory exceptions to this general rule and Horn contends that the facts of this case bring his action within some of those exceptions.

In our review of this case, because the essential facts are not in dispute, the question of the legal relations arising therefrom is one of law and the district court's determination is not insulated by the "clearly erroneous" rule. Therefore, this court is free to substitute its judgment on the law before it.

The first arguably applicable statutory exception imposes liability on the employer (general contractor Osborn)

(i)f, according to previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed.

Ga.Code Ann. § 105-502(2).

In construing this section, Georgia courts have held that work is not "dangerous to others, however carefully performed" if the danger results from doing the work in an unsafe manner when there is a safe way of doing the work. Hodge v. United States, 310 F.Supp. 1090, 1104 (M.D.Ga.1969), Affirmed and adopted, 424 F.2d 545 (5th Cir. 1970). Here it is undisputed that there were in fact several safe ways of doing the work, e. g., bracing, sheeting or "V" ing the ditch. Consequently, we find that the construction of the sewer line involving the excavation of the ditch, when viewed in the light of the undisputed facts reflected by the record, was not inherently dangerous, ³ and was not "in its nature dangerous to others, however carefully performed," so as to charge Osborn with the duty of providing Horn a safe place to work.

The second arguably applicable statutory exception imposes liability on the employer (general contractor Osborn)

(i)f the wrongful act is the violation of a duty imposed by statute.

Ga.Code Ann. § 105-502(4). Horn argues that the contract between the general contractor and the subcontractor is subject to the Occupational Safety and Health Act (OSHA). ⁴ Consequently, there was imposed upon the general contractor a duty to abide by the regulations promulgated under OSHA as they applied to the excavation and the shoring of the walls of ditches. ⁵ Additionally, Horn argues that, assuming OSHA applies, Section 653(b)(2) makes standards promulgated under other health and safety acts applicable to employees covered by OSHA ⁶ and that one such standard is a regulation promulgated under the Contract Work Hours and Safety Standards Act ⁷ (CWHSSA) which imposes joint and several responsibility on the general contractor. ⁸

In addressing these arguments we find it unnecessary to decide whether in this particular instance there was, as Osborn argues, an inappropriate attempt at a private action based solely on a violation of OSHA ⁹ or, as Horn asserts, an independent right of action created by Georgia statute. For even were we to agree with Horn that Osborn was "engaged in a business affecting commerce" so as to be within OSHA's definition of an employer ¹⁰ and that an independent right of action was thereby created by Georgia statute, it seems that OSHA, by its own terms, precludes its applicability.

We reach this conclusion only after a thorough analysis of the provision on which Horn's argument is founded, 29 U.S.C. § 654(a), which provides:

Each employer

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.

(2) shall comply with occupational safety and health standards promulgated under this chapter.

Stated precisely, our inquiry focuses on whether the term "employer" as used in § 654(a) should be interpreted to envelop general contractors as joint or statutory employers of an independent subcontractor's employees and thus impose upon them a duty to provide the employee with a safe working environment. In making our determination we are guided by our decision in Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir. 1975), in which we reversed the decision of the Occupational Safety and Review Commission, reported at 1 OSHC 1713 (1974), and expressed our agreement with the well reasoned dissent of Chairman Moran. In his dissent Chairman Moran in construing the word "employer" as it is used in § 654(a), first points out that the provision does not necessarily mean that the employer is in violation of 29 U.S.C. § 654(a)(2) for every failure to comply with a safety standard which occurs within its worksite. He explained that an employer cannot be held in violation of the above subsection if His employees are not affected by the noncompliance with a standard. And if there was any doubt as to what he meant by "His employee" this was eliminated by his reiteration of the general rule that a contractor is not responsible for the acts of his subcontractors or their employees. In light of this precedent and because it is conceded that Horn was an employee of Bama, we must hold this "statutory duty" exception inapplicable.

The third arguably applicable statutory exception imposes liability on an employer (general contractor Osborn)

(i)f the wrongful act is the violation of a duty imposed by express contract upon the employer.

Ga.Code Ann. § 105-502(3). Horn argues that because the general contract between the Board of Water Commissioners and Osborn imposed a duty to abide by the regulations promulgated under OSHA and Section 107 of CWHSSA, ¹¹ that when those regulations were not followed the resulting breach of duty was sufficient to impose liability based upon the above "express duty" exception. ¹² The district court, however, interpreted the contractual provision as requiring that Osborn abide by the regulations only if the underlying Acts were applicable by their terms (which they are not as discussed earlier). Additionally, Osborn contends that the regulations under OSHA could be no broader in their application than the specific congressional intent behind the act from which they were promulgated. This intent was declared to be, at 29 U.S.C. § 653(b)(4), that OSHA would not in any manner affect, enlarge, or diminish the rights, duties, or liabilities of employers and employees. Consequently, Osborn asserts that the regulations cannot be utilized to expand its liability to Bama's employee Horn. It seems to this court, however, that the focus has been on the statutes themselves when it should have been on...