Inman v. Aluminum Co. of America

• Decision Date: 07 June 1985
• Citation: 697 S.W.2d 350
• Parties: Harold INMAN, et ux., Plaintiffs/Appellants, v. ALUMINUM COMPANY OF AMERICA, Defendant/Appellee.
• Court: Tennessee Court of Appeals

Page 350

697 S.W.2d 350

Harold INMAN, et ux., Plaintiffs/Appellants, v. ALUMINUM COMPANY OF AMERICA, Defendant/Appellee.

Court of Appeals of Tennessee Western Section, at Knoxville.

June 7, 1985.

Application for Permission to Appeal

Denied by Supreme Court

Sept. 3, 1985.

J.D. Lee, Knoxville, for plaintiffs/appellants.

Hugh W. Morgan of Kramer, Johnson, Rayson, McVeigh & Leake, Knoxville, for defendant/appellee.

TOMLIN, Judge.

This is a personal injury case. Harold Inman and his wife, as plaintiffs, ¹ brought suit against the defendant, Aluminum Company of America, for personal injuries sustained by him when he fell from a platform on a tower on defendant's premises. At the time of the injury, plaintiff was an employee of Invirex Demolition, Inc. (hereinafter "Invirex"). He was participating in the demolition of some obsolete portions of defendant's plant by the use of a cutting torch when a portion of the structure collapsed, causing him to fall to the ground. A jury trial was had in the Circuit Court of Knox County. The trial judge granted a summary judgment in favor of defendant on all theories of liability presented by plaintiff except common law premises liability. The case went to the jury on this theory, and the jury returned a verdict for defendant. The principal issue presented by plaintiff, as stated in the briefs of both parties, is: "Whether the trial court properly excluded from evidence the contract between Invirex and Alcoa which conferred third-party creditor beneficiary status on Plaintiff, and imposed a duty upon Alcoa to provide Plaintiff safety belts, nets and adequate safety measures and supervision." We hold that the trial court was not in error in excluding the proffered evidence, and we affirm.

We will delve into the factual arena a bit more to give the reader a slightly better understanding of what took place. It should be kept in mind, however, that plaintiff does not in any way challenge the jury verdict, nor does he challenge any aspect of the trial judge's charge nor any of the evidence admitted by the trial judge. The sole issue again is whether or not the trial judge erred in refusing to admit the proffered evidence.

Invirex, a demolition contractor, entered into a contract with defendant for the demolition and removal of certain structural steel and masonry buildings at defendant's South Plant in Alcoa, Tennessee. Plaintiff was employed by Invirex as a "burner, one who operates a cutting torch in the demolition process. It was stipulated between the parties that Invirex was working under a written contract with defendant, that plaintiff was employed by Invirex, and that plaintiff was injured while working as an employee of Invirex on defendant's premises. It was also stipulated that plaintiff had received worker's compensation benefits for his disability and medical expenses.

At the time of his injury, plaintiff and a fellow employee of Invirex were standing at opposite sides of a tower on a catwalk, a substantial distance off the ground, engaged in the cutting of beams supporting a canopy or roof over the tower. When a portion of the tower supported by the beams being cut by plaintiff and his fellow employee fell, it struck the tower. The force of the impact caused the steel plate forming the floor of that section of the catwalk on which plaintiff was located to disengage, causing him to fall to the ground. The fall resulted in substantial personal injuries to plaintiff. After plaintiff fell, his safety belt was found on the ground near his body; it had not been engaged to any portion of the structure by plaintiff, and there were no safety nets in place. However, there was testimony to the effect that where persons engaged in demolition were "dropping" or causing the structures above the ground being demolished to fall to the ground, it was impractical to use safety nets because the structures being felled would fall into the nets.

Plaintiff contends that certain safety standards governing the use of safety belts and tie-off lines were incorporated into the contract between Invirex and defendant by reference. He also contends that by that contract, there was created an additional contractual duty from defendant to the employees of Invirex to maintain and dictate certain safety standards for Invirex employees and to mandate the provision of safety equipment and the use of that safety equipment by the employees of Invirex, an independent contractor.

The pertinent portions of the contract between Invirex and defendant read as follows:

ARTICLE I. STATEMENT OF WORK.

The Contractor shall complete, and shall furnish all supervision, labor, materials, tools, equipment, unloading, hauling, taxes, insurance and all other things necessary (unless otherwise herein provided) for the completion of the demolition of certain structural steel and masonry buildings, concrete foundations to plant grade and removal of miscellaneous equipment in the South Plant of Owner's Alcoa, Tennessee Operations, as herein specified.

ARTICLE II. CONTRACT DOCUMENTS.

Work shall be performed in accordance with this Contract and the following documents all of which by reference thereto, are incorporated herein and made a part hereof:

A. General Conditions, Form 1060, Pages A-1 through A-10, revised 1976 June.

....

ARTICLE VI. SOLE AGREEMENT.

This Contract, including the other documents referred to in ARTICLE II. CONTRACT DOCUMENTS., hereof, constitutes the entire agreement between the Contractor and the Owner....

In addition to the contract, plaintiff sought to have the trial court find that an additional contractual duty was created on the part of defendant by virtue of the safety standards that were incorporated by reference into this contract. This document, which appears as Exhibit 28 in the record, was presented to the trial court but was excluded by it from the jury, along with the contract. It bears the legend "Alcoa Engineering Standard Safety Belt Tie-Off Regulations."

1. SCOPE

Over the years, Alcoa has had a number of employees seriously or fatally injured when they have fallen to a level below where they were working. To prevent such accidents, this standard establishes safety belt tie-off regulations to be followed by EMPLOYEES working in areas from which they can fall to another level 8 feet ... or more below. On occasion, tie-off may be necessary at lesser heights.

This standard shall cover working on ladders, cranes, girders, machinery, equipment, roofs, tanks, pits, etc. (emphasis supplied).

On the face page of these standards we find the following:

This standard is the property of Aluminum Company of America and must be returned on request. It shall not be reproduced or copied, in whole or in part, or used on behalf of others than Aluminum Company of America or its subsidiaries, without permission.

This engineering standard is provided solely for the purpose of disclosing Alcoa's approach, and is not intended to be a recommendation for any recipient other than Alcoa. No warranties, guarantees or representations, express or implied are made as to the utility or effectiveness of the methods, processes, products or procedures described or recommended herein.

We have not been able to clearly ascertain from the record how these engineering standards were actually incorporated by reference into the contract between Invirex and defendant. However, since we find no objection made by counsel for defendant as to their being considered by the trial court along with the contract, we will treat them as being so referenced under ARTICLE II, quoted above.

The trial court would not permit the introduction of either the contract or the engineering standards through which plaintiff attempted to assert an additional theory of liability against the defendant. In so doing, the court found that the plaintiff's status as a business invitee was sufficient as a matter of law to permit the jury to find that defendant owed some duty of protection to plaintiff as an employee of an independent contractor.

In the case of Dill v. Gamble Asphalt Materials, 594 S.W.2d 719 (Tenn.Ct.App.1979) cert. denied (1980), Presiding Judge Parrot, writing for the Eastern Section of our Court, stated:

In any action grounded in negligence, the existence or nonexistence of a duty on the part of the defendant "... is entirely a question of law, to be determined by reference to the body of statutes, rules, principles, and precedents which make up the law; and it must be determined only by the court." (Emphasis added.) W. Prosser, Law of Torts, § 37 (4th ed. 1971).

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