Johnson v. EMPE, Inc.

• Decision Date: 25 February 1992
• Citation: 837 S.W.2d 62
• Parties: Vicki Lynn JOHNSON, Surviving Spouse of Thomas Wayne Johnson, Plaintiff-Appellant, v. EMPE, INC. and City of Bristol, Tennessee, Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 62

837 S.W.2d 62

Vicki Lynn JOHNSON, Surviving Spouse of Thomas Wayne Johnson, Plaintiff-Appellant, v. EMPE, INC. and City of Bristol, Tennessee Defendants-Appellees.

Court of Appeals of Tennessee,

Eastern Section.

Feb. 25, 1992.

Permission to Appeal Denied by

Supreme Court

June 22, 1992.

Walter O. Waddey, Kingsport, for appellant, Vicki Lynn Johnson.

Frank Winston, Jack W. Hyder, Jr., Bristol, for appellee, City of Bristol.

W. Carr Hagan, Jr., Kingsport, for appellee, EMPE, Inc.

OPINION

McMURRAY, Judge.

The plaintiff, widow of Thomas Wayne Johnson, filed this action to recover damages for the wrongful death of her husband. The record reflects that Thomas Wayne Johnson, an employee of Baker Construction Company, was killed during the course of his employment when an excavation in which he was working collapsed on him. Baker Construction Company was the deceased's immediate employer and a contractor engaged in the construction of a sewer project for the defendant, City of Bristol. The defendant, EMPE, Inc., was the project engineer.

The material allegations in the complaint relating to the defendant, City of Bristol, are as follows:

That Bristol, Tennessee, is a municipal corporation located in Sullivan County, Tennessee. That said Municipality acts through its servants, agents and employees. That as such, it is under a duty to provide a reasonably safe work place. That Bristol, Tennessee, failed to provide a reasonably safe work place for their general contractor's employees, and that such failure constitutes negligence.

That Bristol, Tennessee, owned and physically controlled a public street known as State Street and negligently allowed a dangerous, defective condition to exist. By and through their employees, as defined in Tennessee Code Annotated Sec. 29-20-107, the city had actual or constructive knowledge of said condition and failed to repair or warn of said condition. That the maintenance of said condition, the failure to repair said condition and the failure to warn of said condition constitutes negligence.

The City of Bristol had a duty, by and through its employees as defined in Tennessee Code Annotated Sec. 29-20-107, to inspect its own property while said property was the subject of such a project to assure compliance by their general contractors with, at least, a minimum safety standards and OSHA requirements; and said city failed to require the contractor to meet its contractual obligations to perform the work in a safe and lawful manner. That such conduct constitutes negligence.

The plaintiff asserts that the defendant, EMPE, was guilty of negligence in that it failed to inspect the project and assure completion of the project in a timely, efficient and safe manner; failed to require the contractor to shore up or otherwise protect the excavation; and, failed to require the contractor to comply with applicable OSHA standards. She further asserts that EMPE failed to warn the deceased of the danger that the excavation posed.

In response to the complaint, both EMPE and the City of Bristol filed motions to dismiss or in the alternative for a summary judgment. The defendant, City of Bristol relied upon the Governmental Tort Liability Act as a bar to the action and further insisted that the complaint failed to state a cause of action as to this defendant. EMPE based its motion on the proposition that it had no responsibility for safety measures and/or precautions and asserted that this responsibility was solely that of the general contractor. After a hearing on the motions, the court sustained the motion of the City of Bristol but overruled the motion of EMPE.

Thereafter, after discovery depositions had been taken, EMPE filed a second motion to dismiss and for summary judgment. The second motion was supported with evidence which had not been submitted in support of the first motion. The court sustained the second motion on the grounds that there was no legal duty owed to the deceased by this defendant.

The plaintiff appeals from the judgment of the court dismissing the action both as to the City of Bristol and EMPE. We affirm the judgment of the court.

The plaintiff presents the following issues for our consideration:

1. Whether or not the trial court was correct in granting the defendant, EMPE, Inc., a summary judgment dismissal against the plaintiff, pursuant to its "Motion to Dismiss and Second Motion for Summary Judgment," the first motion for summary judgment having been overruled and a jury trial ordered as to it.

2. Whether or not the trial court was correct in granting the defendant City of Bristol, Tennessee, a summary judgment against the plaintiff.

We will first consider the issue relating to the City of Bristol. The City of Bristol specifically relied upon T.C.A. Secs. 29-20-201, 29-20-203, 29-20-204, 29-20-205(1), (4) and 29-20-303. These sections provide in pertinent part as follows:

29-20-201. General rule of immunity from suit--Exceptions.--(a) Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of said governmental entities wherein said governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.

(b) When immunity is removed by this chapter any claim for damages must be brought in strict compliance with the terms of this chapter.

29-20-203. Removal of immunity for injury from unsafe streets and highways--Notice required.--(a) Immunity from suit of a governmental entity is removed for any injury caused by a defective, unsafe or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity.

(b) ...

29-20-204. Removal of immunity for injury from dangerous structures--Exception--Notice required--(a) Immunity from suit of a governmental entity is removed for any injury caused by the dangerous or defective condition of any public building, structure, dam, reservoir or other public improvement owned and controlled by such governmental entity.

(b) ...

29-20-205. Removal of immunity for injury caused by negligent acts or omission of employees--Exceptions.--Immunity from suit ... is removed for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury:

* * * * * *

(4) Arises out of the failure to make an inspection, or by reason of making an inadequate inspection of any property;

* * * * * *

29-20-303. Failure to comply with notice requirements.--Failure to comply fully with notice requirements of this chapter shall be as valid and complete defense to any liability of a governmental entity which might otherwise exist by virtue of this chapter.

It is patently clear that the allegations charging the city with failure to inspect the premises fall directly within the exception of T.C.A. Sec. 29-20-205(4) and any action based thereon is barred. It is likewise patently clear that a public sewer project construction site, which coincidentally is located on a public street does not fall within the contemplation or clear meaning of T.C.A. Sec. 29-20-203 which removes immunity for a suit arising out of a defective, unsafe or dangerous condition of any street, alley, sidewalk or highway. Therefore, this section has no application to the case at hand. The result perhaps might be different if the injury complained of arose from the use of a street, alley, sidewalk or highway for its intended purpose. The injury here, however, arose directly from the construction activity of the general contractor and not a defect in the street.

We will next consider the viability of the plaintiff's assertion that the defendant, City of Bristol, failed to provide a safe place for the contractor's employees to work. There is a general duty on the part of a landowner to use reasonable care to provide a safe place in which an independent contractor and his employees can work. Hutchison v. Teeter, 687 S.W.2d 286 (Tenn.1985). Generally, the landowner is under a duty to warn of defects on the premises. Shell Oil Company v. Blanks, 46 Tenn.App. 539, 330 S.W.2d 569, (1959). We are unaware of any authority, however, and none has been called to our attention, which places a burden on the landowner to discover and warn a contractor's employees of conditions created by the independent contractor during the course of work on the project. The controlling principle is correctly stated in The Tennessee Pattern Jury Instructions, Civil (2d ed.):

T.P.I. 9.08

An owner of premises who employs a contractor to perform work on the property, but who remains in control of the premises where the work is being done, owes to the employees of the contractor a duty to exercise ordinary care in the management of the premises in order to avoid exposing the employees to an unreasonable risk of harm.

If, however, the contractor had complete control of the premises where the accident occurred and the owner had retained no control of that part of the premises except to the extent of determining if the work was being performed according to the contract, then the owner owes no duty of care to the employees of the contractor.

The rule may be more concisely stated. The law places the duty upon the person in control of premises to exercise reasonable and ordinary care, under the circumstances, not to cause injury to one lawfully upon the premises. See Ruth v. Ruth, 213 Tenn. 82, 372 S.W.2d 285 (1963). Thus, under the circumstances of this case, where the contractor was undisputedly in control of the premises, the duty was upon the contractor and not the City of Bristol. Therefore, assuming arguendo that this action is not barred by the Governmental Tort Liability Act, we nevertheless agree with the trial court that, as a matter of law, no duty was owed by the City of Bristol to the deceased. We are of the opinion that the summary...