Krahwinkel v. Commonwealth Aluminum Corp.

Citation183 S.W.3d 154
Decision Date25 August 2005
Docket NumberNo. 2003-SC-0708-DG.,No. 2004-SC-0219-DG.,2003-SC-0708-DG.,2004-SC-0219-DG.
PartiesLewis F. KRAHWINKEL, Jr., Appellant/Cross-Appellee, v. COMMONWEALTH ALUMINUM CORPORATION, Appellee/Cross-Appellant.
CourtUnited States State Supreme Court (Kentucky)

Jeanie Owen Miller, Owensboro, Counsel for Appellant/Cross-Appellee.

Marvin P. Nunley, McCarroll, Nunley & Hartz, Owensboro, Counsel for Appellee/Cross-Appellant.

COOPER, Justice.

Appellee, Commonwealth Aluminum Corporation ("Commonwealth") contracted with Intech-Industrial Technology, Inc. ("Intech") for the purchase and installation of a new fluid capture system in its industrial plant. The contract required Intech to install a large tank in the basement of the plant into which groundwater containing PCBs would be pumped for containment and disposal. On January 24, 1996, the tank was unloaded from an Intech truck and moved by a permanently installed overhead crane across the motor room of Commonwealth's plant to a room containing a large hole in the floor through which the tank was lowered to the basement. The grate that normally covered the hole was removed for this purpose. Appellant, Lewis F. Krahwinkel, Jr., an employee of Intech, was assigned the task of guiding the tank through the motor room using a lead line. He testified that a large amount of oil and grease, as much as an inch thick, was on the portion of the motor room floor on which he was required to walk in order to guide the tank, and that the oil and grease adhered to his boots. After the tank was lowered into the hole, Appellant remained on the ground floor passing tools to other Intech employees in the basement. While so engaged, he slipped and fell through the hole approximately sixteen feet to the basement floor, seriously injuring his right knee and ankle. He later opined that the oil and grease that adhered to his boots while he was guiding the tank through the motor room caused his feet to slip out from under him. Gene Holtzman, Commonwealth's safety administrator, admitted at trial that there was oil and grease on the floor in the area around the hole.

Appellant filed a workers' compensation claim against Intech. He also brought this civil action in the Hancock Circuit Court against Commonwealth, alleging that his fall was caused by negligent acts or omissions of Commonwealth. Intech intervened in the civil action to assert its statutory subrogation claim, KRS 342.700(1), but voluntarily dismissed its intervening complaint prior to trial.

According to an Agreement as to Compensation dated February 5, 2001, Appellant successfully prosecuted his workers' compensation claim against Intech to an "opinion and award dated February 27, 1998." He received $18,240.57 in temporary total disability benefits (TTD)1 (57 weeks2 × $320.01 per week) and additional weekly benefits for a 50% permanent partial disability (PPD).3 Pursuant to KRS 342.020, Intech's insurer, Underwriters Safety & Claims, also paid medical bills of $15,292.15 incurred by Appellant up to the date of the agreement. The remainder of Appellant's workers' compensation claim was settled for a lump sum of $39,956.68, itemized as follows:

                  $30,456.68 — lump sum payment of 50% PPD
                               award
                    4,500.00 — buyout of future medical expenses
                    4,000.00 — waiver of right to reopen
                    1,000.00 — waiver of vocational rehabilitation
                  __________
                  $39,956.68
                

At the trial of Appellant's civil action against Commonwealth, Appellant introduced evidence that there were no protective guardrails ("fall prevention") around the hole and no place to tie off a safety harness ("fall restraint") normally worn while working in the vicinity of an open floor hole. Appellant asserted that Commonwealth's violation of occupational safety and health regulations requiring these protections constituted negligence per se and that the jury should be instructed only to determine the degree of Appellant's fault, if any, and render an apportioned verdict pursuant to KRS 411.182. Instead, the trial court instructed the jury that Commonwealth had a duty to exercise ordinary care to maintain its business premises in a reasonably safe condition. The jury returned a verdict finding both parties at fault and fixing Appellant's damages at $44,971.02, itemized as follows:

                  $10,000.00 — permanent impairment of power
                               to earn money
                    7,300.00 — past and future pain and suffering
                   17,671.02 — medical expenses incurred
                   10,000.00 — lost wages
                  __________
                  $44,971.02
                

Because the jury also apportioned fault at 75% against Commonwealth and 25% against Appellant, the trial court reduced the judgment to a lump sum of $33,728.27 ($44,971.02 × 0.75). Applying the apportionment to each separate item of damages yields the following itemization:

                  $ 7,500.00 — permanent impairment
                    5,475.00 — pain and suffering
                   13,253.27 — medical expenses
                    7,500.00 — lost wages
                  __________
                  $33,728.27
                

On appeal to the Court of Appeals, Commonwealth asserted that (1) the trial court should have sustained its motion for a directed verdict because (a) the presence of the hole was open and obvious, and (b) pursuant to its contract with Intech, the latter assumed responsibility for the safety of its own employees; or, in the alternative, (2) the trial court should have vacated those portions of the judgment that duplicated amounts paid to Appellant or his medical providers pursuant to his workers' compensation claim so as to prevent double recovery. The Court of Appeals held that (1) Appellant's testimony that his fall was caused by the oil and grease that adhered to his boots while he was guiding the tank through the motor room created a jury issue with respect to Commonwealth's negligence and causation, rendering it unnecessary to address whether Intech had contractually assumed responsibility to provide guardrails or safety harnesses for its employees;4 but (2) an owner is not liable for injuries to third parties arising out of work performed by an independent contractor unless the work constitutes a nuisance or is inherently dangerous, and that the work performed by Intech fell into neither of those categories; and (3) even if the work was inherently dangerous, the liability of an owner to employees of an independent contractor is limited to payment of workers' compensation benefits. See KRS 342.700(2). Since Appellant had already recovered workers' compensation benefits from Intech, he had no claim against Commonwealth. Having thus disposed of the case, the Court of Appeals did not reach the issue of double recovery.

Appellant moved for discretionary review and Commonwealth filed a cross motion for review solely to preserve the issue of double recovery. Commonwealth, Transp. Cabinet v. Taub, 766 S.W.2d 49, 51-52 (Ky.1988). Since issues pertaining to Commonwealth's negligence and causation were not preserved for further review, Appellant's argument that Commonwealth's alleged violation of administrative regulations adopted pursuant to the Kentucky Occupational Safety and Health Act, KRS 338, constituted negligence per se are moot. We now reverse the Court of Appeals insofar as it vacated Appellant's judgment in its entirety, and remand this case to the Hancock Circuit Court with directions to determine an appropriate computation of the total credit due to Commonwealth in light of the employer's/insurer's failure to assert its right of subrogation and enter an amended judgment in accordance with that computation.

I. LIABILITY OF OWNER FOR INJURIES TO EMPLOYEES OF INDEPENDENT CONTRACTOR.

The Court of Appeals' reliance on Simmons v. Clark Constr. Co., 426 S.W.2d 930 (Ky.1968), Jennings v. Vincent's Adm'x, 284 Ky. 614, 145 S.W.2d 537 (1940), and Clemons v. Browning, 715 S.W.2d 245 (Ky.App.1986), for its holding that Commonwealth is not liable for Appellant's damages because the work performed by Intech was neither a nuisance nor inherently dangerous was misplaced. Those cases apply only when it is sought to hold an owner vicariously liable for the negligence of an independent contractor. Jennings, 145 S.W.2d at 541. In both Simmons and Clemons, employees of subcontractors were injured because of defective scaffolding erected not by the owner but by the independent general contractor. Simmons, 426 S.W.2d at 931; Clemons, 715 S.W.2d at 246. The fatal explosion in Jennings was caused by the negligence of employees of the independent contractor, not the owner. Jennings, 145 S.W.2d at 539. Here, Commonwealth was not held vicariously liable because of the negligence of Intech's employees. It was held directly liable because of its own negligence.

In holding that the liability of the owner to the employees of an independent contractor is limited to payment of workers' compensation benefits, the Court of Appeals relied on language in King v. Shelby Rural Elec. Coop. Corp., 502 S.W.2d 659 (Ky.1973), which, if taken out of context, would seem to support that position, viz:

We can see no reason why appellant, simply because he was an employee of an independent contractor, should be placed in a better position than if he had been an employee of Shelby [owner], in which case his recovery would be limited without question to the benefits provided by the Workmen's Compensation Act. Conversely, we see no valid reason why Shelby should be subjected to more liability simply because it engaged the services of a qualified independent contractor.

Id. at 663. However, King, like Simmons, Jennings, and Clemons, was a case in which an employee of an independent contractor sought to hold the owner vicariously liable for injuries caused by the contractor's negligence:

The evidence in the case on behalf of Shelby indicated that it did not exercise any control whatever over the work involved and did not consider itself to have the right of [sic] the duty to do so.

. . .

[T]he liability of Shelby for the negligence of the independent...

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