Johns v. Pettibone Corp.
| Citation | 769 F.2d 724 |
| Decision Date | 26 August 1985 |
| Docket Number | No. 84-7361,84-7361 |
| Parties | Beverly Kay JOHNS, Plaintiff-Appellant, v. PETTIBONE CORPORATION, et al., Defendants, Frank Van Meter, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
M. Clay Alspaugh, Birmingham, Ala., for plaintiff-appellant.
Herbert S. Sanger, Jr., Gen. Counsel, James E. Fox, Associate Gen. Counsel, Thomas C. Doolan, Edwin W. Small, Tennessee Valley Authority, Knoxville, Tenn., for Van Meter.
On Petition for Rehearing (Opinion March 25, 1985, 11 Cir., 755 F.2d 1484).
Before RONEY and HILL, Circuit Judges, and TUTTLE, Senior Circuit Judge.
The Opinion of this Court previously published is hereby withdrawn and the following Opinion and Decision is published in lieu thereof.
Beverly Kay Johns and her minor children appeal from the decision of the district court granting summary judgment to the defendant employees of the Tennessee Valley Authority in a suit for the wrongful death of her husband, Gary Johns. Johns, an ironworker employed by an independent contractor, Combustion Engineering, Inc. ("CE"), was electrocuted at the TVA Widows Creek Steam Plant when the boom of a power crane leased to CE came into contact or near contact with a live TVA electric power transmission line at the plant. CE had contracted with TVA to design, fabricate, and erect a gas desulphurization system at the plant.
The appellee TVA employees held the positions of chief of construction services, chief of safety, supervisor of safety engineering, plant superintendent for power production, assistant superintendent for power production, and safety supervisor at the plant. The district court entered summary judgment as to these defendants on the basis that their duty to the plaintiff could be no greater than TVA's, that as a landowner TVA had no duty to warn invitees of "open and obvious" dangers such as overhead transmission lines, and that the contract between TVA and CE imposed no responsibility on TVA for the safety of CE's employees. The plaintiffs' claims against the owner/operator of the crane and the manufacturer of the crane were not dismissed by the district court and are not before this Court at this time. A separate suit against TVA itself was dismissed because an action for wrongful death, being punitive in nature under Alabama law, will not lie against TVA. The plaintiffs did not appeal that decision.
There are only three issues for decision by this Court.
1. Did the district court err in holding that defendants had no common law or statutory duty to warn of the hazard posed by the overhead transmission lines because the lines were open and obvious?
2. Did the district court err in holding that the contract between TVA and CE imposed no duty on TVA to provide for the safety of the CE employees?
3. Are the TVA employees entitled to immunity?
The district court granted summary judgment to the defendants on the ground that because the transmission lines were in plain sight, the dangerous condition was open and obvious and, therefore, as a landowner, TVA had no duty to warn invitees of the hazard. The court relied on Beck v. Olin Co., 437 So.2d 1236 (Ala.1983); Hill v. United States Steel Corp., 640 F.2d 9 (5th Cir., Unit B, 1981); and LeSuer v. United States, 617 F.2d 1197 (5th Cir.1980).
As to this issue, appellants contend that while the transmission lines themselves were obvious, their condition was not and thus that they were not an obvious hazard. Appellants point out that the lines were uninsulated and energized, and point to testimony from defendants that, at least to an untrained eye, it would be impossible to tell from the ground whether lines were insulated or not, and that even a trained individual could not tell from the ground whether the lines were energized. After the judgment below and after the briefs here had been filed, the Alabama Supreme Court decided the case of Bush v. Alabama Power Co., 457 So.2d 350 (Ala.1984), which the appellant submitted as supplemental authority. This case is controlling.
In Bush, the Alabama Supreme Court reversed a lower court decision granting summary judgment both to the power company and to the landowner (a country club). In Bush, an employee of an independent contractor hired to work on the lights at a tennis court was injured when he pushed a scaffold into uninsulated wires of the power company above one edge of the tennis courts. As to the power company, the court stated:
The duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep the same insulated, wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith. This statement of the rule implies that, in the absence of statute or municipal ordinance, it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in proximity to them.... In other words, Alabama Power must either insulate its electrical lines, or locate them in a position where they pose no danger to human life. However, the duty to insulate does not arise absent notice, actual or constructive, that persons may come into contact with the uninsulated wires.
The court held that it could not say as a matter of law that it was not foreseeable that individuals might come into contact with the wires. Therefore, the court held that summary judgment was improper.
As to the landowner (the country club), the court noted that the landowner's duty to invitees is only to warn of hidden dangers known to it and unknown, or not such as ought to be known, to the invitee. The court noted, however, that while it was undisputed that the lines were clearly visible, there was testimony that one could not tell from the ground whether the lines were insulated and energized. Since only uninsulated and energized lines created a hazard, the court held that whether this danger was open and obvious was a question for the jury. Thus, the court held that summary judgment was improper.
So, too, here there was testimony before the court in depositions that workers did not know and could not determine visually whether the lines were "live" or whether they were insulated or uninsulated.
We conclude that Bush is binding authority for the proposition that the issue of openness and obviousness of the danger is a fact issue which cannot be disposed of by summary judgment. Similarly, Bush is authority for the proposition that TVA, as a power company, has a duty to insulate its wires if persons could reasonably be expected to come into contact with them. Under Bush, the issue of whether TVA had actual or constructive notice that persons might come into contact with the wires is a fact issue which cannot be disposed of on summary judgment.
The district court held that the health and safety provisions of TVA contracts, which give TVA the right to inspect the operations of independent contractors to determine whether they are following proper safety procedures, do not create a duty on TVA to provide for the safety of the employees. Musgrave v. TVA, 391 F.Supp. 1330 (N.D.Ala.1975).
Appellants concede that the safety provisions do not create a duty to employees of contractors. Appellants argue, however, that another clause in the contract with CE does create a duty. This clause was not dealt with by the trial court. It provides as follows:
EQUIPMENT/SERVICES TO BE FURNISHED BY THE PURCHASER. The following facilities and services have not been included in the company's scope of supply at this time. These items will be required for the construction work to be performed by the company and would normally be furnished by purchaser or...
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