Industrial Tile, Inc. v. Stewart
| Decision Date | 22 August 1980 |
| Citation | 388 So.2d 171 |
| Parties | INDUSTRIAL TILE, INC., a corp. v. John STEWART and United States Fidelity and Guaranty Company, a corp. COURTAULDS NORTH AMERICA, INC. v. INDUSTRIAL TILE, INC., a corp. 78-462, 78-401. |
| Court | Alabama Supreme Court |
Robert H. Smith of Collins, Galloway & Smith, Mobile, for Industrial Tile, Inc.
Paul W. Brock and William C. Roedder, Jr. of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for Courtaulds North America, Inc.
James H. Lackey, Mobile, for John Stewart and United States Fidelity and Guaranty Co.
Plaintiff, John Stewart, was employed at the time of his accident as an iron worker for J & J Construction and Maintenance Contractors (J & J). J & J had been engaged by Courtaulds North America, Inc. (Courtaulds) to renovate an area of its LeMoyne, Alabama, plant. Stewart was injured when he attempted to aid an employee of another independent contractor, Industrial Tile, Inc. (Industrial Tile); the other employee was electrocuted when a cherry picker (a mobile hydraulic crane) operated by Industrial Tile employees came in contact with a 7200-volt wire which had been installed in 1971 as a temporary measure by Courtaulds, which owns and maintains its own electrical system, including overhead transmission lines. The transmission wire had been partially disconnected when no longer needed, but the current was never cut off. The wire draped an entrance to an unpaved storage yard within the Courtaulds compound, where employees of all independent contractors performed work.
Stewart filed this action against Courtaulds, Industrial Tile, and others. He alleged that he was injured as a result of the negligence of Courtaulds in installing and maintaining high voltage lines in a negligent manner on its premises and having uninsulated wires in a place where it might reasonably be expected that persons or machinery would come into contact with them. He also alleged that Industrial Tile negligently operated a crane so as to cause it to come into contact with the power lines installed and maintained by Courtaulds.
The case against Courtaulds and Industrial Tile went to the jury, which returned a verdict in favor of plaintiff, Stewart, for $375,000. Courtaulds and Industrial Tile filed motions for judgment notwithstanding the verdict or, in the alternative, new trials. These were denied, and Industrial Tile filed notice of appeal.
Courtaulds did not appeal from the judgment entered in favor of plaintiff, Stewart, but did appeal from the judgment entered in favor of Industrial Tile and against it on its cross-claims. By way of cross-claim, Courtaulds claims indemnity for any judgment recovered against it by Stewart. We address each of the appeals separately.
Industrial Tile, Inc., a corp. v. John Stewart and United States Fidelity and Guaranty Company, a corp.
The sole issue raised on appeal by Industrial Tile is whether the trial court erred to reversal in admitting into evidence the fact that Industrial Tile had been fined for violating OSHA regulations.
Plaintiff charged that Industrial Tile had negligently operated a mobile hydraulic crane in such a manner as to allow the crane to come in contact with power lines maintained by Courtaulds. Counsel for Courtaulds, on cross-examination of an officer of Industrial Tile, elicited from that witness that he was familiar with the Occupational Safety and Health Act (OSHA) and its requirements that where power lines contained 50,000 volts or less, there must be a clearance of ten feet between the boom of a crane and the wire. The witness then identified a copy of the rules and regulations, which were admitted into evidence without objection. Among the regulations set out was Section 1926-550 which contains the minimum clearance requirements. This witness testified that such regulations applied to Industrial Tile. He was then asked whether Industrial Tile had been fined by OSHA for violation of a regulation. Counsel for Industrial Tile objected and moved to strike the question, contending then and now that such evidence was prejudicial and, thus, inadmissible.
The trial court heard argument from counsel for both sides and overruled the objection and, when the jury returned, advised that the regulations were admitted into evidence "not as the absolute rule for you to follow but this is a guideline of rules and regulations, one of the guidelines of the rules and regulations to be followed in the trade or business Industrial Tile is involved in."
Counsel for Courtaulds then asked the witness if Industrial Tile had been cited by OSHA on the day of the accident for violation of the ten-foot rule. Counsel for Industrial Tile renewed its objection on the ground that it was "inadmissible, incompetent, irrelevant and immaterial as to any of these matters that OSHA undertook in administrative proceedings, would be prejudicial and again (renewed its) request for a mistrial." The court overruled the objection and denied the motion for a mistrial, instructing the jury that "this is not the ultimate decision for you to decide, but you consider this in connection with all of the facts that you hear in this case." The witness then answered that Industrial Tile had been fined by OSHA. The witness testified that Industrial Tile had an opportunity to contest the citation but did not do so for the reason that
In Knight v. Burns, Kirkley and Williams Construction Inc., 331 So.2d 651 (Ala.1976), this Court held that a plaintiff did not have a private civil remedy because of a violation of the Occupational Safety and Health Act of 1970 or the regulations promulgated thereunder. The Court specifically said:
However, this does not mean that appropriate and relevant standards and safety requirements established by OSHA or accompanying regulations are completely and totally irrelevant. In the case of City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264 (1939) this court upheld the admission into evidence of 'Safety Rules for the Installation and Maintenance of Electrical Supply and Communications Lines' from the 'Handbook of The Bureau of Standards, No. 10,' for the jury to consider in determining whether a defendant was negligent or not. These safety rules were promulgated by an agency of the United States Government. Under proper circumstances Occupational Safety and Health Act provisions and regulations may be admissible for a jury to consider in determining the standard of care that a defendant should have followed, if properly introduced in accordance with the requirements of the City of Dothan v. Hardy, supra.
Knight v. Burns, Kirkley and Williams Construction, Inc., supra, p. 654.
We hold that it was not error to admit the regulations under the rule stated in City of Dothan, supra. If the regulations are admissible as going to show a standard of care, then it seems only reasonable that evidence of violation of the standards would also be admissible as evidence that the defendant failed to meet the standards that it should have followed. Clearly, the fact that Industrial Tile had been cited by OSHA for violating the standards, and the fact that Industrial Tile had paid the fine, are relevant to the question of whether it violated the standard of care applicable to its conduct. There was evidence from a number of witnesses that the crane violated the ten-foot standard. It seems to us that evidence that Industrial Tile paid the fine without objection was properly admitted in evidence as a declaration against interest. Motley v. Page, 250 Ala. 265, 34 So.2d 201 (1948); Ritter v. Griswold, 2 Ala.App. 618, 56 So. 860 (1911). We find no error to reverse, particularly in light of the admonition given the jury by the trial judge that it was not to consider the rules and regulations as an absolute, but merely as guidelines, and that they were to be considered along with all the other facts adduced in the case.
The judgment is affirmed.
Courtaulds North America, Inc. v. Industrial Tile, Inc., a corp.
In response to plaintiff Stewart's suit against Courtaulds and Industrial Tile, and others, Courtaulds filed an answer and also filed cross-claims against Industrial Tile seeking indemnity on several theories. Industrial Tile moved to dismiss the cross-claims, but this motion was not ruled upon until after the trial was had and all the parties had rested. At the end of the case, the trial court entered its order granting Industrial's motion to dismiss.
The case was submitted to the jury which returned a verdict for $375,000 in favor of plaintiff Stewart and against all defendants. After the court denied its motions to set aside its order dismissing the cross-claims, Courtaulds appealed.
On appeal, Courtaulds asserts that the trial court was wrong in granting Industrial's motion to dismiss the cross-claims.
It asserts that the trial court erred in granting the motion because Courtaulds refiled the cross-claims after the motion to dismiss was filed and no new motion to dismiss was again filed. We are unpersuaded by this argument. Courtaulds admits that the refiled cross-claims were substantially identical to the ones to which the motion to dismiss was originally addressed. We see no need for the refiling of a motion to dismiss not theretofore ruled upon where the pleadings to which it was originally addressed were not substantially altered by the refiling.
Furthermore, although we are urged to test the trial court's correctness in granting Industrial's motion to dismiss the cross-claims as a 12(b)(6) ARCP motion, it should not be viewed as a usual motion to dismiss case. This motion to dismiss was not ruled upon until all of the evidence was in. Therefore, we must test the trial court's action in view of what was before it at the time and, thus viewed, it lends...
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