Lemmer v. IDS Properties, Inc., 50327
| Decision Date | 12 May 1981 |
| Docket Number | 50463.,No. 50327,50327 |
| Citation | 304 NW 2d 864 |
| Parties | James R. LEMMER, et al., Plaintiffs, v. IDS PROPERTIES, INC., defendant and third party plaintiff, Respondent, Appellant. WACO SCAFFOLDING AND SHORING COMPANY, defendant and third party plaintiff, Respondent, v. TURNER CONSTRUCTION COMPANY, third party defendant, Appellant, Respondent. |
| Court | Minnesota Supreme Court |
Cousineau, McGuire, Shaughnessy & Anderson, Kathleen D. Drake, Minneapolis, for IDS Properties, Inc. in No. 50327.
Mahoney, Dougherty & Mahoney and Kenneth P. Gleason, Minneapolis, for Turner Construction Company.
Cousineau McGuire, Shaughnessy & Anderson and James L. Haigh, Minneapolis, for IDS Properties, Inc. in No. 50463.
Popham, Haik, Schnobrich, Kaufman & Doty and G. Marc Whitehead, Minneapolis, for Waco Scaffolding & Shoring Company.
Heard before OTIS, WAHL, and SCOTT, JJ., and considered and decided by the court en banc.
The plaintiff, James R. Lemmer, was injured while working in the IDS Center on September 11, 1972. In 1975 he and his wife, Irene G. Lemmer, sued IDS and Waco Scaffolding and Shoring Company, the owner and sub-contractor respectively. In 1977 IDS impleaded Turner Construction, the general construction manager on the project, for contribution and indemnity. Trial commenced on September 12, 1978.
At the conclusion of plaintiffs' case, Waco and IDS entered into a settlement with plaintiffs under which each defendant would pay $50,000 for a total of $100,000. Defendants Waco and IDS expressly agreed that the settlement was without prejudice to their claims against Turner and each other. The jury returned a verdict finding Lemmer 20% at fault, third-party defendant Turner 80% at fault, and exonerated Waco and IDS. The trial court ordered judgment for IDS and Waco of $50,000 each against Turner. Turner appeals from that judgment. (Case No. 50327).
The trial court also held that Waco was entitled to indemnity of $20,000 from IDS for attorneys fees under a provision of a delivery order signed by an agent of IDS. IDS appeals from that order. (Case No. 50463).
We affirm in part and reverse in part.
IDS Properties, Inc. hired Turner Construction Co. as the general project manager with duties similar to those of a general contractor. Under the contract Turner agreed that equipment, including scaffolding, "shall be provided by the Contractor or his Subcontractors who shall maintain them in good and safe mechanical working order, be responsible for their safe use, and remove them when no longer required." The contract also provides:
The Contractor Turner shall be responsible to the Owner IDS for the acts and omissions of all his employees and all Subcontractors, their agents and employees and all other persons performing any of the Work under a contract with the Contractor.
The indemnity clause of the contract reads as follows:
The Contractor Turner should ensure that the sub-contractor shall indemnify and hold harmless the Owner and Architects, IDS their agents and employees in a manner approved by the Owner.
Turner also assumed the duty to keep the premises safe during construction. The relevant contract provisions are as follows:
The accident of September 11, 1972, occurred during the final phases of construction of the IDS Center. Lemmer and his co-worker, Howard Hartig, were clearing material out of lower level two where their employer, Commonwealth Electric Company, had temporarily stored it. Lemmer and Hartig took cart loads of equipment and material from the storage area to the elevators where other employees met them and completed the transfer of property to the fourth floor of the Marquette Inn Building. The average round trip took Lemmer and Hartig ten to twenty minutes to complete. When they returned to the elevators with a loaded cart on one of the trips, they discovered that some scaffolding had been moved into position which blocked their path. They could not move it because the wheels were locked. While Lemmer was unlocking the wheels, the scaffolding collapsed and fell on him. Upon hearing of the accident, Beyer, as was his normal practice, investigated on behalf of Turner.
Equipment of various subcontractors had been stored on lower level two. Among the equipment was some scaffolding. In addition, on September 11, 1972, the day of the injury, Waco delivered scaffolding to IDS to be used for exterior window washing.
Shortly after the close of plaintiffs' case-in-chief both defendants settled with the plaintiffs. Some particulars of the settlement agreements are not altogether clear from the record, but the most important terms are undisputed. Plaintiffs were to receive $50,000 from each defendant, Waco and IDS, for a total of $100,000. Plaintiffs agreed to settle with Commonwealth's worker's compensation insurer so that Waco and IDS would not be liable for more than $50,000 each. Waco and IDS reserved their claims for indemnity or contribution against Turner, and Waco reserved its claims for indemnity against IDS, but in no event would it seek more than $50,000 from IDS. IDS also agreed that in the event Turner was liable to IDS, and Waco was liable to Turner, IDS would not pursue its claim and Waco's total liability would be limited to $50,000. Although the record does not explicitly indicate that the settlements were intended to release all defendants and potential defendants, the most reasonable and apparent interpretation of the record in the context of the parties in this case leads to the conclusion that all defendants were released by the plaintiffs. Cf. Lametti v. Peter Lametti Constr. Co., 305 Minn. 72, 232 N.W.2d 435 (1970). The trial court ruled that the settlement was reasonable and prudent and that the evidence was such that the jury could find liability on any or all of the parties.
The case was submitted to the jury on a special verdict. The jury found that the scaffolding equipment which injured Lemmer was not the same scaffolding delivered by Waco to IDS. The evidence supports this determination because the wheels ordered by IDS and noted on the delivery order are different from those on the scaffolding which injured Lemmer, and because the Waco driver who delivered the scaffolding testified that after he delivered it, it was pushed down three levels over serrated surfaces, to a storage area on lower level three, not lower level two where the accident occurred.
The jury also found IDS not to be negligent, and found Lemmer 20% negligent. The trial court had ruled that Turner was the sole possessor of the property, and the jury found Turner 80% negligent. The negligence of other subcontractors and of Hartig, Lemmer's co-employee, were not submitted to the jury because submission of their negligence had not been requested by any party.
After post-trial motions, judgment was entered in favor of Waco and IDS requiring Turner to indemnify each of them for the $50,000 each had paid in settlement. Turner appeals claiming that the evidence does not support the jury finding that it was negligent and that the trial court erred in awarding Waco and IDS indemnity against it.
Judgment was also entered in favor of Waco against IDS for indemnity for attorneys fees under an agreement found to exist between Waco and IDS based on a clause in the delivery order signed by an agent of IDS. IDS appeals.
1. The first issue raised is whether the evidence supports the jury's findings that Turner was negligent and 80% at fault for Lemmer's injury. Turner's contractual agreement with IDS is evidence of its duty to Lemmer. Foster v. Herbison Constr. Co., 263 Minn. 63, 115 N.W.2d 915 (1962). In addition, Turner had duties as a possessor of land. Thill v. Modern Erecting Co., 272 Minn. 217, 136 N.W.2d 677 (1965).
In its contract with IDS, Turner agreed to "take all reasonable precautions for the safety of, and to provide all reasonable protection to prevent damage, injury or loss to * * * all employees on the job." Turner specifically agreed to appoint a person to be in charge of the prevention of accidents and agreed, "in order that the job will be completed with the greatest degree of safety, * * * to conform to all the provisions of the `Manual of Accident Prevention in Construction' published by Associated General Contractors of America, Inc., latest edition."
In performing the contract Turner appointed Donald Beyer as safety director to monitor the activities of subcontractors to see that safe construction practices were followed. Beyer held safety meetings which representatives of subcontractors; posted safety posters; made periodic inspections of the site; and investigated accidents in order to prevent future similar occurrences. Beyer's only staff was a nurse and several people who handled safety communications.
IDS argues that Turner had a duty to do more in this instance, because Turner had knowledge of facts from which it should have anticipated the hazardous condition arising and thus should have taken steps to prevent an injury from occurring. Turner knew that subcontractors were storing equipment on lower level two; that the equipment was being...
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