Konicek v. Loomis Bros., Inc., 89-567

Decision Date20 June 1990
Docket NumberNo. 89-567,89-567
Citation457 N.W.2d 614
PartiesGary KONICEK and Judy Konicek, Individually, and Jeremy and Kassandra Konicek, Individually, and Jeremy and Kassandra Konicek, by Gary Konicek, their Father and Next Friend, Appellees, v. LOOMIS BROTHERS, INC., Appellant.
CourtIowa Supreme Court

David A. Elderkin and Edward M. Blando of Elderkin and Pirnie, Cedar Rapids, for appellant.

Richard A. Pundt, Jon Kinnamon, and Philip A. Hershner of Kinnamon, Kinnamon, Russo & Meyer, Cedar Rapids, for appellees.

Considered by HARRIS, P.J., and SCHULTZ, LAVORATO, SNELL, and ANDREASEN, JJ.

LAVORATO, Justice.

The plaintiff here is an employee of an independent contractor. A general contractor hired the plaintiff's employer to roof a building under construction. The plaintiff fell while working on the roof and sustained severe injuries. The plaintiff then sued the general contractor. At trial the district court submitted to the jury four theories of recovery. Answering special verdict forms as to each theory, the jury found that the plaintiff had established all four of them.

The general contractor has appealed, claiming that none of the theories should have been submitted to the jury. We consider only one theory because we think there was sufficient evidence to support a verdict on that theory. We therefore affirm.

In April 1985 Loomis Brothers, Inc.--the defendant--contracted with Cornell College in Mount Vernon to build a sports learning center. The contract provided that Loomis would act as the general contractor of the project.

Loomis then subcontracted with Cliff Abild Construction Co. to roof the center. Gary Konicek--the plaintiff--was a construction employee of Abild.

The roof was designed to have between sixty-eight to ninety skylights, and each skylight was to measure two feet by eight feet. These skylights were not placed in a simple, regular pattern in one area of the roof. Instead the skylights appeared in an irregular pattern over the entire roof.

It was about forty feet from the top of the roof to the ground. The roof was fairly flat.

When Abild came on the job site, about three-quarters of the steel decking for the roof was in place. The holes for the skylights had been made in the decking.

Before Abild began its work, James Caswell--Loomis' construction superintendent--asked Abild's foreman if Abild was going to cover the exposed skylights. The foreman insisted the roofing could not be done with the skylights covered. So when the Abild roofers began their work, no covers or protective devices were used.

While Abild was working on the facility, Loomis employees laid soundproofing insulation on the roof. After this insulation was in place, Abild employees laid a vapor barrier over the insulation to keep the wind from blowing out the insulation. A vapor barrier consists of six-foot-wide strips with tinfoil on the top and brown paper on the bottom. Once the vapor barrier was in place, Abild employees would then install the remaining roofing layers.

Konicek testified to the procedure the roofers used to lay the vapor barrier:

Just started wherever the roll was at, either at the top or the bottom. Somebody would hold it down at the bottom or tape it at the top. You can tape [the vapor barrier] and roll it. You can start taping up your seams and you just run it out the full length of the roof, cut it off and finish taping it and turn it around and come back down.

Because the vapor barrier covered the skylight openings, the roofers would cut out the openings so that the openings could be seen.

Shortly after Abild began working on the roof, another Abild roofer, Donnie Ellison, fell through a skylight while laying the vapor barrier. Ellison stepped through a skylight that he had just covered with the vapor barrier. Ellison was able to catch himself on an X-brace in the corner of the skylight and avoided falling to the ground.

Immediately after this incident, Konicek told his foreman, Dennis Burkle, that some protective measures were needed. Konicek suggested covering the skylights with a support platform that would attach to the inside of the skylights. Burkle, however, did not follow Konicek's suggestion. Loomis' construction superintendent learned about Ellison's mishap, but he too did nothing.

On March 26, 1986, Konicek fell through a skylight while on the roof of the sports learning center. Just before he fell, Konicek had been rolling a strip of the vapor barrier from the top of the roof directly over and ten feet past a skylight. Konicek then asked a coworker to throw him a piece of wood so he could block the material and cut out the skylight opening.

As Konicek walked toward the skylight, a gust of wind blew the vapor barrier off the roof decking. In his words, Konicek stepped down on the strip, "out of reflexes." Unfortunately, the area he stepped down on was the skylight opening. He went through the material and into the opening of the skylight. He was able to grab the sides of the skylight, but he could not hold on and fell to the ground. As a result of the fall, Konicek suffered various injuries to his head, back, legs, and arms.

On cross-examination, Konicek was asked whether he knew where the hole was and how he intended to find it:

Q. Okay. And the hole is two feet wide and the roll was, I believe you said, six foot wide; correct? A. Correct.

Q. And you had a pretty good idea where that hole was, didn't you? A. Yeah. It was someplace in the middle.

Q. How did you intend to find it? A. If the wind hadn't picked it up, with the roof being completely on, if there is any wind blowing, it just blows it up. There is an updraft coming through the openings of the skylights. Most of the time on the rest of the skylights that we had done, it wasn't blowing. The wind wasn't that bad where it would pick it up and blow it off, you could see right where it was at, you could see the indentations of the angle iron frame providing the vapor barrier was lying flat. As I walked around, it wasn't a planned thing to step down on this paper, it was a reflex. I walked around, the wind picked it up, I stepped on it, there was nothing underneath it. I had no control over the wind blowing, out of sight, out of mind, the hole was completely out of sight. There was no way of knowing where the hole was or even think I knew where I was at on the roof when the paper blew up. It was a reflex, step over, put the vapor barrier back on the roof so it doesn't blow off.

After Konicek fell, Abild placed protective frames in the skylight openings. These were put in place before any additional vapor barriers were laid.

Because of his injuries, Konicek received workers' compensation benefits from Abild. Consequently, Konicek did not file a personal injury action against Abild. Konicek did, however, sue Loomis, the general contractor, and alleged negligence as the basis for his suit. Konicek premised his negligence claim on three grounds:

1. Failure to provide a reasonably safe work place;

2. Failure to respond to complaints about hazardous conditions existing at the work site;

3. Failure to comply with state and federal Occupational Safety and Health Administration regulations.

Konicek's petition also contained claims on behalf of his wife and his two minor children for loss of consortium.

After filing its answer, Loomis moved for a summary judgment. In support of its motion, Loomis contended that as a general contractor, it owed no specific duty to Konicek, an employee of the subcontractor. Loomis contended that a general contractor can only be held liable for injuries suffered by a subcontractor's employee when: (1) the general contractor retains control over the work of the subcontractor and its employees; (2) the work performed constitutes a peculiar risk; (3) the general contractor assumed a duty to provide specified safeguards and precautions for the safety of others by statute, regulation or contract and (4) the general contractor owes a duty to a subcontractor's employees as business invitees.

These conditions, argued Loomis, did not exist in Konicek's case. So Loomis asserted that as a matter of law a summary judgment in its favor was required. The district court overruled Loomis' motion. The case proceeded to a jury trial. At the close of the evidence, Loomis moved for directed verdict which the district court overruled.

The district court then submitted the case to the jury on all four theories raised in Loomis' motion for summary judgment. The jury answered that Loomis was negligent on the basis of all four theories. In addition, the jury assessed no fault to Konicek.

The jury then found that Konicek was entitled to damages of $849,008 on his claim, that his wife was entitled to damages of $125,000 on her spousal consortium claim, and that the children were entitled to $40,000 on their parental consortium claim.

Following trial Loomis moved for a judgment notwithstanding the verdict and for new trial. See Iowa R.Civ.P. 243 and 244. Loomis asserted that none of the four theories should have been submitted to the jury.

The district court overruled the motion for judgment notwithstanding the verdict and for new trial. Loomis appealed, again contending that none of the four theories should have been submitted to the jury. Loomis asserts here that the district court erred when it overruled Loomis' motion for a judgment notwithstanding the verdict and new trial.

We restrict our discussion to the business invitee theory because we think there was sufficient evidence to support a verdict on this theory.

I. A judgment notwithstanding the verdict must stand or fall on the grounds stated in the motion for directed verdict. On appeal, our review is limited to those grounds. Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa 1990).

When considering a motion for judgment notwithstanding the verdict, the district court must view the evidence in the light most favorable to the party against whom the...

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