Manhattan-Dickman Const. Co. v. Shawler

• Decision Date: 18 November 1976
• Docket Number: MANHATTAN-DICKMAN,No. 12589--PR,12589--PR
• Citation: 113 Ariz. 549,558 P.2d 894
• Parties: CONSTRUCTION COMPANY, an Arizona Corporation, and Allison Steel Manufacturing Co., an Arizona Corporation, Appellants and Cross-Appellees, v. Wayne T. SHAWLER and Michael F. Kumler, Appellees and Cross-Appellants.
• Court: Arizona Supreme Court

Page 894

558 P.2d 894

113 Ariz. 549

MANHATTAN-DICKMAN CONSTRUCTION COMPANY, an Arizona Corporation, and Allison Steel Manufacturing Co., an Arizona Corporation, Appellants and Cross-Appellees, v. Wayne T. SHAWLER and Michael F. Kumler, Appellees and Cross-Appellants.

No. 12589--PR.

Supreme Court of Arizona, In Banc.

Nov. 18, 1976.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Richard J. Woods, Phoenix, for Manhattan-Dickman.

Black, Robertshaw, Frederick, Copple & Wright by Richard A. Black, Phoenix, for Allison Steel.

Charles M. Brewer, Ltd., Phoenix by Leonard W. Copple, Tempe, and Herbert Mallamo, Phoenix, for appellees and cross-appellants.

Robert K. Park, Chief Counsel, State Compensation Fund by J. Victor Stoffa, Phoenix, amicus curiae.

STRUCKMEYER, Vice Chief Justice.

This action was brought by Wayne T. Shawler and Michael F. Kumler to recover damages for injuries sustained during the course of construction of a coliseum at the State Fairgrounds in Phoenix, Arizona. Following trial, verdicts were returned in favor of plaintiffs against Manhattan-Dickman Construction Company and Allison Steel Manufacturing Company. On appeal and cross-appeal, the Court of Appeals by memorandum decision reversed, holding that the evidence was not sufficient to support a finding of negligence against either Manhattan-Dickman or Allison Steel. We accepted review. Opinion of the Court of Appeals vacated.

Manhattan-Dickman, as general contractor for the State of Arizona, entered into subcontracts with the Allison Steel Manufacturing Company and the Raymar Contracting Company. Allison Steel contracted to fabricate and install certain structural steel and other ironwork. In part it was required to install hanger rods from the roof of the structure to support an aluminum gridwork upon which acoustical ceiling tiles were to be placed. The hanger rods were to be attached to roof cables which were strung across the top of the coliseum, connected at each end to a concrete ring beam which circled the perimeter of the roof. At the concrete ring beam, the hanger rods had to be attached to the underside of the concrete so that support would be provided for the outer edges of the aluminum gridwork (ceiling). The architect's drawings (see drawing taken from Plaintiff's Exhibit 2a)

(See following illustration) provided that under the concrete ring beam the upper ends of the hanger rods were to be bolted through the bottom part of steel plates having a 'Z' shape. The 'Z'-shaped steel plates were to be anchored to the concrete ring beam using a 'shot stud.' The shot stud was to be embedded in the concrete by means of a gun device which used an explosive charge to drive the stud into the concrete to the desired depth.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Allison Steel completed the hanger rod installation and plaintiffs, employees of Raymar, were bolting the aluminum grid upon which the acoustical ceiling was to rest to the bottom end of the hanger rods when a stud which was embedded in the concrete ring beam pulled loose. The Z-clip holding the hanger rod to the concrete ring beam gave way, causing a portion of the gridwork to collapse and plunging the plaintiffs 39 feet to the floor below.

Both Allison Steel and Manhattan-Dickman urge that the trial court erred when it denied their motions for directed verdicts and for judgments notwithstanding the verdicts, or in the alternative for a new trial, for the reason that there was no reasonable evidence to support their asserted negligence. But we think the evidence of negligence is clear even to the point of being gross.

In deciding the issue of whether there was reasonable evidence of negligence, the Court will view the evidence in the light most favorable to the party who prevailed in the trial, E. L. Jones Const. Co. v. Noland, 105 Ariz. 446, 466 P.2d 740 (1970), and if there is evidence to support the judgment, it will be sustained. Polk v. Koerner, 111 Ariz. 493, 533 P.2d 660 (1975). In reviewing the sufficiency of the evidence to support a verdict, and judgment for a plaintiff, the appellate court will give the appellee the benefit of every favorable inference which can be drawn from the evidence. Atchison, T. & S.F. Ry. Co. v. Parr, 96 Ariz. 13, 391 P.2d 575 (1964). See also, Tucson Title Insurance Company v. D'Ascoli, 94 Ariz. 230, 383 P.2d 119 (1963); Boies v. Raynor, 89 Ariz. 257, 361 P.2d 1 (1961).

George Plecas, in charge of construction for Allison Steel, testified that by occupation he was a structural ironworker; that it was the responsibility of Allison to attach the Z-clips; that a ramset gun is a pistol or a gun into which a stud is placed 'and you fire it into the concrete and it has threads on the end of it to fasten a nut to.' In response to the question whether the studs ever pulled out, Plecas answered that if the gun was not held right the shot sometimes would come back out and break the concrete. Among other things, it was Plecas' responsibility to inspect the shot (studs). He testified that he visually inspected the stud which held the Z-clip. This visual inspection was made from about 55 feet from where the accident occurred. If the rod was hanging there, that was his inspection and he did not go to where he could reach up and shake the rod.

Donald Carroll testified that he had been an ironworker about 25 years; that he has done work for Manhattan-Dickman under Wayne Holland, Superintendent for Manhattan-Dickman on the coliseum job. Carroll did miscellaneous ironwork for Manhattan-Dickman; that is, work that wasn't contracted out, or work that had to be changed. After the accident, he modified the hanger rods in the corners of the perimeter of the concrete ring beam at the request of Wayne Holland.

Carroll testified that he removed some of the ramsets (studs) and:

'Q. Tell us what you did and what the condition of them was when you removed them.

A. Some of them were curled like they had hit something hard into the concrete, and it fractured the concrete. When I hit the top of them with a hammer, the Z-plates in the rod would come loose and bring the stud right down with it, and large chunks of concrete.

Q. What did you remove these with?

A. Usually just a hammer or shake them and they would come loose.

Q. Shake them with your hands?

A. Shake the rod with my hand.'

Although numerous grounds of negligence are suggested by appellees, we think it is sufficient to say that from the foregoing the jury could have reasonably and fairly concluded as to Allison Steel that its employees failed to set the studs securely in the concrete ring and that, further, the inspection by Plecas, Allison's superintendent, of the work was wholly inadequate to disclose the resulting dangerous weakness in the supports for the acoustical ceiling. It is also clear that since by Article 12 of the General Conditions of the Contract for the Construction of Buildings 'the Contractor shall take all necessary precautions for the safety of employees on the work * * *' the jury could have also concluded that Manhattan-Dickman, the contractor and co-ordinator of the work (Contract, Special Conditions, subsec. 4), in advising Raymar to proceed with the installation of the ceiling without a reasonably careful inspection which would disclose the structural weakness in the attachment of the hanger rods under the concrete beam was negligent.

Manhattan-Dickman urges that the trial court erred in admitting the testimony of Carroll that after the accident he was instructed by Wayne Holland, Superintendent for Manhattan-Dickman, to modify the installation of the hanger rods under the concrete beam. Appellant asserts that such evidence was highly prejudicial because it suggested an admission of culpability on the part of Manhattan-Dickman.

The general rule, supported by the great weight of authority, is that evidence of repairs or alterations taken after an accident is not admissible to prove negligence; neither is it an admission of negligence. Slow Development Co. v. Coulter, 88 Ariz. 122, 127, 353 P.2d 890 (1960). However there are certain well-established exceptions. One is that such evidence is admissible to show that the control of the premises was in the defendant where control is a matter of dispute. Morehouse v. Taubman Company, 5 Cal.App.3d 548, 85 Cal.Rptr. 308 (1970), and cases cited in 64 A.L.R.2d 1299, 1311, anno: Admissibility of Evidence of Repairs etc. after Accident.

Defendant Manhattan-Dickman's control of the premises was a matter of dispute. The plaintiffs in their pre-trial statement asserted that the defendant Manhattan-Dickman was negligent 'in failing to make necessary inspection to ascertain that the ramset studs were being properly attached to the ring beam.' By its answer, Manhattan-Dickman denied 'that it retained control over the use of the method and manner in which the frames (the aluminum gridwork) were installed.' It is therefore clear that testimony of Donald Carroll that he was employed by Manhattan-Dickman to modify the method of attaching the hanger rods to the ring beam was relevant to the disputed issue of the general contractor's control of the work.

The principle of liability upon which appellees rely is set forth in § 414, Restatement of Torts 2d:

' § 414. Negligence in Exercising Control Retained by Employer

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.'

The jury could believe it was Manhattan-Dickman's duty to exercise such control over Allison's work, at least to the extent that dangerous defects which might make Allison's work unsafe to others would be discovered.

'The general rule which defines the common law obligation of the general...