Jones Food Co., Inc. v. Shipman

• Decision Date: 15 December 2006
• Docket Number: 1051322.
• Citation: 981 So.2d 355
• Parties: JONES FOOD COMPANY, INC. v. Clarence SHIPMAN and Kathy Shipman.
• Court: Alabama Supreme Court

981 So.2d 355

JONES FOOD COMPANY, INC. v. Clarence SHIPMAN and Kathy Shipman.

1051322.

Supreme Court of Alabama.

December 15, 2006.

Order Overruling Rehearing September 21, 2007.

John M. Bergquist and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham, for appellant.

Ted L. Mann and Robert Potter of Mann, Cowan & Potter, P.C., Birmingham, for appellees.

NABERS, Chief Justice.

Jones Food Company, Inc., appeals an order of the trial court denying its motion for a judgment as a matter of law in this premises-liability action. For the reasons discussed below, we reverse.

Facts and Procedural History

During 1998 Clarence Shipman, the owner of Shipman Heating and Air Conditioning, was engaged in the business of installing and repairing heating, ventilation, and air-conditioning ("HVAC") systems in the Gadsden area. On March 11, 1998, an employee of Jones Food, a franchisee of Huddle House, Inc., requested that Shipman service the air-conditioning system at the East Meighan Boulevard Huddle House restaurant operated by Jones Food in Gadsden.

Jones Food took possession of the restaurant site under a September 1995 lease with Doyle Denson, the property owner. An Omelette Shoppe breakfast restaurant operated out of the one-story restaurant building before Jones Food began operating the Huddle House restaurant there. In October 1995 a contractor hired by Jones Food renovated the restaurant. The roof was about 9.5 feet above the ground and flat; it was surrounded by a facade on all four sides that extended approximately three feet above the flat roof and enclosed the rooftop improvements. The facade sloped inward at an angle of approximately 45°. The HVAC system was one of the improvements enclosed by the facade. The above-ground modifications included in Jones Food's renovation of the restaurant were the installation of "Huddle House" signs on the facade on three sides of the building, the installation of new electrical wiring for those signs, the installation of new ducts and returns on the air-conditioning units, the installation of an exhaust duct through the roof, and the placement of new refrigerator lines between the service-level and rooftop compressors (collectively "the roof renovations"). The contractor also sealed those areas on the roof where the roof had been cut for the new ducts, the exhaust system, and the refrigeration lines. Jones Food did not alter the roofline or the slope or design of the surrounding facade after it leased the restaurant.

Shipman and Thomas McKinney, his helper, responded to the March 1998 service call from Jones Food. While Shipman had not previously serviced the HVAC system at the restaurant, he had performed similar service for Jones Food at its other Huddle House restaurant locations. Shipman and McKinney decided to use a 20-foot, portable extension ladder, which they placed at the back of the restaurant, to climb over the facade and access the HVAC system. Safety precautions on that ladder warned against positioning it at less than a 75° angle to the ground. An "L" diagram on the ladder illustrated the proper angle at which the ladder should be positioned before climbing. Because the facade sloped inward at approximately 45°, had the ladder been positioned and extended at the 75° angle contemplated by its manufacturer, Shipman and McKinney would have had to jump approximately four feet from the top of the ladder to the edge of the facade. To avoid jumping that gap, Shipman and McKinney leaned the ladder against the slope of the facade so that the ladder was positioned at an approximate 45° angle instead of 75° in accordance with the manufacturer's instructions. As a result, the base of the ladder was positioned so that the resulting angle between the ladder and the ground was 30° less than the minimum angle shown on the "L" diagram that illustrated the proper angle of use.

The feet on the ladder were positioned on a dry, paved surface that sloped slightly away from the back of the restaurant. The bottom of the ladder was not secured in any way. The ladder was not equipped with hooks or another similar device to prevent it from moving at either the bottom or the top while in use. No representative of Jones Food had recommended that Shipman use that particular ladder, had told him to position it against the building at the rear of the restaurant at the same 45° angle as the facade, or had otherwise given him any instruction as to how he should access the HVAC system.

McKinney climbed onto the roof first. Shipman remained on the ground and held the ladder as McKinney ascended. When McKinney reached the top, he stepped over the facade, stood on the roof, and used two hands to hold the ladder against the facade while Shipman climbed. When Shipman neared the top of the facade, McKinney repositioned himself so Shipman could move off the ladder and climb over the facade onto the flat portion of the roof. When McKinney changed his position, he continued to hold onto a rung of the ladder with one hand. However, as Shipman prepared to move off the ladder, its footings kicked out, and Shipman fell to the paved surface below.

In February 2000, Shipman sued Jones Food seeking damages for medical expenses, lost earnings, and personal injuries (including permanent disability to his right leg) that had resulted from the accident. Kathy Shipman, his spouse, also sued Jones Food seeking damages for loss of consortium.¹ The principal claims by the Shipmans were that Jones Food had negligently, recklessly, and wantonly failed (a) to warn Shipman of the danger of the roof, and (b) to repair and maintain the roof area free of defects with railings or to provide a means of access to the roof other than a portable ladder. Jones Food asserted the affirmative defenses of contributory negligence and assumption of the risk.

The Shipmans' action was tried before a jury in January 2006. The jury heard evidence indicating that in July 1996 Thomas Cornelius, a HVAC repairman who worked for an independent contractor unaffiliated with Shipman's company, had fallen from a ladder while servicing the HVAC system at the restaurant. Like Shipman, Cornelius was trying to access the HVAC system on the roof by placing a portable ladder at the rear of the restaurant at the same angle as the facade, i.e., 45° to the ground. The ladder Cornelius used was not secured at the bottom, and it kicked out at the bottom while in use. Cornelius testified that, before he fell, he did not consider himself at risk or notice any open and obvious danger in accessing the roof. Cornelius's fall was reported to the district supervisor for Jones Food, who in turn reported that incident to Tony Jones, a principal of Jones Food. Cornelius did not, however, tell any representative of Jones Food that the ladder he used in July 1996 moved at the bottom or otherwise explain to anyone associated with Jones Food how he fell. When Shipman made his service call in March 1998, no representative of Jones Food told Shipman that Cornelius had fallen from the roof almost two years before. However, before Shipman's accident, Calvin McCoy, a customer was inside the restaurant. As McCoy left the restaurant, he noticed McKinney on the roof and saw a ladder leaning against the building. Before Shipman fell, McCoy told him that an employee of another HVAC contractor had fallen off the roof and that another contractor who had previously successfully accessed the roof of the restaurant had braced the bottom of the ladder against the tire of a truck.

The jury also heard evidence about two building codes—the 1994 editions of the standard gas code ("the gas code") and the standard mechanical code ("the mechanical code")—that were effective at the time of Shipman's accident. The preamble to both codes stated their purposes as follows:

"... [T]o serve as a comprehensive regulatory document to guide decisions aimed at protecting the public's life, health and welfare in the built environment. This protection is provided through the adoption and enforcement, by state and local governments, of the performance-based provisions contained herein."

Section 405.3 of the gas code stated:

"405.3 Access to Appliances "Appliances located on the roof or other elevated locations shall be accessible.

"EXCEPTION: When the roof is less than 20 ft (6096 mm) above grade, the use of portable means of access is acceptable."

(Emphasis supplied.) Section 304.6.3 of the mechanical code stated:

"304.6.3 ... Every appliance located on the roof of any building shall be accessible.

"EXCEPTION: When the roof or wall mounted equipment is less than 20 ft (6096 mm) above grade, the use of portable means of access is acceptable."

(Emphasis supplied.)

Brian Harbison, a building official for the City of Gadsden, testified that both the gas code and the mechanical code had been adopted by the City by the time of Shipman's accident. The structure from which Shipman fell had been built before the City adopted those codes. According to Harbison, however, when the contractor hired by Jones Food retrofitted the restaurant in October 1995, the roof renovations then undertaken obligated the owner and Jones Food to comply with the requirements in the gas code and the mechanical code that related to the roof system. The City issued a building permit for the work performed by the contractor. The permit application stated that the work was for "general repairs to [convert] the old [Omelette Shoppe] to a Huddle House." After the contractor finished the renovations, Harbison visually inspected the main level of the restaurant to assure that conditions were safe for the general public. Harbison did not inspect the roof at that time. Harbison testified that, other than the installation of new Huddle House signs on the facade and the associated wiring, he was not aware that the contractor had worked on the roof. After Harbison's inspection, the City issued to Jones Food a...