Horn v. CL Osborn Contracting Co., Civ. A. No. 75-105-COL.

• Decision Date: 08 December 1976
• Docket Number: Civ. A. No. 75-105-COL.
• Citation: 423 F. Supp. 801
• Parties: Johnnie L. HORN, Plaintiff, v. C. L. OSBORN CONTRACTING CO., Defendant and Third Party Plaintiff, v. BAMA UTILITY CONTRACTORS, INC., Third Party Defendant.
• Court: U.S. District Court — Middle District of Georgia

423 F. Supp. 801

Johnnie L. HORN, Plaintiff, v. C. L. OSBORN CONTRACTING CO., Defendant and Third Party Plaintiff, v. BAMA UTILITY CONTRACTORS, INC., Third Party Defendant.

Civ. A. No. 75-105-COL.

United States District Court, M. D. Georgia, Columbus Division.

December 8, 1976.

COPYRIGHT MATERIAL OMITTED

Billy E. Moore and Edward W. Szczepanski, Jr., Columbus, Ga., for plaintiff.

S. E. Kelly, Jr., Kelly, Champion, Denney & Pease, Columbus, Ga., for defendant and third party plaintiff Osborn.

Richard A. Marchetti, of Page, Scrantom, Harris, McGlamry & Chapman, Columbus, Ga., for third party defendant Bama.

OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

ELLIOTT, Chief Judge.

This matter is before the Court on separate motions for summary judgment filed by the Defendant-Third Party Plaintiff, C. L. Osborn Contracting Co. (hereafter Osborn) and the Third Party Defendant, Bama Utility Contractors, Inc. (hereafter Bama), and it is clear from a review of the entire record which has been developed that there is no controversy concerning any fact material to a consideration of these motions.

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 and thereafter Osborn subcontracted a portion of the work to Bama. Under the subcontract Bama was to perform all of the work in a designated area, a complete section of the work project being turned over to Bama for completion. In advance of entering into the subcontract with Bama, Osborn knew of the quality of work done by Bama and that Bama was experienced in the type of work to be undertaken. Bama was furnished with a copy of the plans and specifications applicable to the area where Bama was to perform its subcontract work and was furnished with a design plan which had been furnished to Osborn by the Board of Water Commissioners which was applicable to the work area subcontracted. Thereafter Bama used its own equipment and employees in carrying out its work under the terms of the subcontract and Osborn provided no equipment or employees with respect thereto. Bama hired, fired and supervised its own employees and Osborn did not at any time hire, fire or supervise any employee working with Bama and Osborn did not supervise any work activity performed by Bama or exercise any control or supervision over any employee of Bama. The Board of Water Commissioners furnished an engineer-inspector on the entire project and that inspector as well as an inspector for Osborn did inspect the work product of Bama, however, these periodic visits were only for the purpose of observing the progress that was being made toward completion of the job and did not involve any direction as to how the work was to be accomplished by Bama.

At all times mentioned herein the Plaintiff, Johnnie L. Horn, was an employee of Bama and was directly supervised by other employees of Bama and he was engaged in the laying of sewer pipe in an excavation or ditch. While so employed he sustained personal injuries on two occasions. On July 2, 1974, while the Plaintiff was working in a ditch excavated to a depth of approximately 16 feet, the side or sides of the ditch caved in causing certain personal injuries. Having recovered from the injuries sustained in that incident, he 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 side or sides of this ditch caved in.

The plaintiff concedes that he was an employee of Bama, and not of Osborn. He also concedes that the relationship of Bama to Osborn was that of an independent contractor, and because of the injuries above referred to he has received the benefits provided by the Workmen's Compensation insurance coverage carried by Bama. By this action he seeks to recover general damages from the general contractor, Osborn.

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

The Plaintiff's complaint is brought in three counts. In the first count Osborn, the general contractor, is charged with negligence, and in the second count with gross negligence, and in the third count with wilful and wanton negligence, all of the counts being premised on the contention that Osborn permitted the Plaintiff to work in a trench improperly opened and failed to provide safeguards so that the ditch would not collapse, it being alleged that such negligent acts proximately caused the two incidents complained of and the personal injuries sustained by the Plaintiff. The Plaintiff contends that the general contractor was negligent in not bracing or shoring the ditch at the job site in compliance with the provisions of the Safety and Health Regulations for Construction pertaining to excavation, trenching and shoring as promulgated by the United States Department of Labor; that it violated the provisions of its general contract entered into with the Board of Water Commissioners, which contract incorporated by reference said Regulations; and that it required the Plaintiff to engage in work which was inherently dangerous.

Georgia law applies in this case and § 105-501 of the Georgia Code Annotated establishes the general rule with regard to the non-liability of the employer who engages the services of an independent contractor, it being as follows:

"The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer."¹

There are certain statutory exceptions to the general rule above quoted and the Plaintiff contends that the facts of this case bring his action within some of these exceptions. The first exception contended by the Plaintiff to be applicable is that codified in § 105-502(4), which is:

"The employer is liable for the negligence of the contractor — (4) if the wrongful act is the violation of a duty imposed by statute."

In this connection the Plaintiff urges that the general contractor here violated the provisions of the Contract Work Hours and Safety Standards Act (40 U.S.C. § 327, et seq.) and the Occupational Safety Health Act of 1970 (29 U.S.C. § 651, et seq.) as those Acts apply to the excavation of the ditches and the shoring of the walls of the ditches in which the Plaintiff worked and in which he was injured.

Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. § 333) predated the Occupational Safety and Health Act of 1970 and applies to federally funded contracts for construction which are described at 29 CFR § 1926.11, et seq. The general contract in this case pertains to a local project and in no way indicates that it falls within the purview of a federally funded construction project or within the specific scope of § 107 of the Contract Work Hours and Safety Standards Act. It is true that when Congress passed the Occupational Safety and Health Act (hereafter OSHA) in 1970, it did, at 29 U.S.C. § 653(b)(2), include as a part of OSHA the standards previously promulgated by the Secretary of Labor under the provisions of the Contract Work Hours and Safety Standards Act. Also, under § 6 of OSHA (29 U.S.C. § 655) the Secretary of Labor was authorized by Congress to use already existing federal standards and incorporate them as they apply to employers encompassed within the scope of OSHA. The difference between the two pieces of legislation is that the safety standards promulgated under the Contract Work Hours and Safety Standards Act pertain only to federally funded projects and those promulgated under OSHA apply to all employers "affecting commerce". The latter mentioned legislation is on its face broader in scope, but even so, there is nothing in the record in this case to indicate that it would be applicable to these contracts because there is no evidence indicating that either Osborn or Bama were employers "affecting commerce".

Even assuming, however, that the provisions of OSHA would apply in this instance the Plaintiff's contention that this would provide an exception to the general rule of non-liability for acts of independent contractors would not be sustained because OSHA itself specifies (at 29 U.S.C. § 653(b)(4)):

"Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment."

The clear and unmistakeable intent of Congress in incorporating the language immediately above quoted in OSHA has been recognized in a number of decisions by United States Circuit Courts of Appeal as well as by several District Courts. The Fifth Circuit Court of Appeals, in Jeter v. St. Regis Paper Co., 507 F.2d 973 (1975), and in Skidmore v. Travelers Insurance Company, 483 F.2d 67 (1973), and the Fourth Circuit Court of Appeals in Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (1974), and the Sixth Circuit Court of Appeals in Russell v. Bartley, 494 F.2d 334 (1974), and the District Court for the Northern District of Mississippi, in Hare v. Federal Compress and Warehouse Company, 359 F.Supp. 214 (1973),² and Otto v. Specialties, Inc., 386 F.Supp. 1240 (1974), and the District Court for the Western District of Kentucky in Cochran v. International Harvester Company, 408 F.Supp. 598 (1975), have all concluded that the Congressional intent in enacting OSHA was not to create an action for damages in favor of employees and that a violation of the OHSA requirements or regulations issued thereunder would not suffice to form a...