Marsland v. Bullitt Co., s. 234--41000-
| Decision Date | 21 September 1970 |
| Docket Number | 306--41197--I,Nos. 234--41000-,s. 234--41000- |
| Citation | 474 P.2d 589,3 Wn.App. 286 |
| Court | Washington Court of Appeals |
| Parties | John W. MARSLAND, Respondent, v. BULLITT COMPANY, a Washington corporation, d/b/a The Logan Building, Appellant-Respondent, Scaffolds & Equipment, Inc., a Washington corporation, Defendant, Western Gear Corporation, a Washington corporation, Appellant. Thomas STATON and Florence V. Staton, his wife, Respondents, v. BULLITT COMPANY, a Washington corporation, d/b/a the Logan Building, Appellant-Respondent, Scaffolds & Equipment, Inc., a Washington corporation, Defendant, Western Gear Corporation, a Washington corporation, Appellant. |
Detels, Draper & Marinkovich, Frank W. Draper, Seattle, for Bullitt co.
Lycette, Diamond & Sylvester, Earle W. Zinn, Seattle, for Western Gear Corp.
Lee, Carney, Smart & Bever, Fred T. Smart, John F. Biehl, Seattle, for Thomas Staton, Florence Staton and John W. Marsland.
Merrick, Burgess & Hofstedt, F. Roland Hofstedt, Seattle, for Scaffolds Equipment, Inc.
John W. Marsland and Thomas Staton, window washers employed by American Building Maintenance Co. (ABM), sued Bullitt Company (Bullitt), Scaffolds & Equipment, Inc. (Scaffolds), and Western Gear Corporation (Western Gear) to recover damages for their injuries sustained when a scaffold and hoist apparatus furnished by Bullitt for their use in washing the Logan Building windows malfunctioned and plunged 1 about seven floors to the sidewalk below. Western Gear manufactured the equipment claimed to be defective, and Scaffolds supplied it to Bullitt. Western Gear was voluntarily dismissed with prejudice on plaintiffs' motion. Defendants Bullitt and Scaffolds brought cross-actions for indemnity against Western Gear. The trial court, sua sponte, severed the cross-actions from the initial action, and the matter proceeded to trial. The jury returned a verdict in favor of the plaintiffs against Bullitt only, and in favor of Scaffolds. The trial court denied Bullitt's motion for a new trial and judgment n.o.v., and judgment entered for plaintiffs against Bullitt. Bullitt appeals.
Subsequently, in a separate trial to a different jury, Bullitt's cross-action against Western Gear seeking indemnity resulted in a verdict against Western Gear. 2 Western Gear appeals from the judgment entered against it.
Bullitt owns and operates the Logan Building, a 10-story office building located at 5th Avenue and Union Street in Seattle, and employed ABM to perform janitorial services at the building, including window washing. ABM's employees, the respondents Marsland and Staton, at the time of the accident were washing windows from a power-driven scaffold suspended from the roof. The scaffold consisted of a platform and a 'Sky Climber' 3 hoist apparatus which was used to raise and lower the platform. Western Gear designed, manufactured and owned the Sky Climber hoist. Scaffolds is Western Gear's distributor for Sky Climber hoists. Western Gear had supplied the Sky Climber to Bullitt through Scaffolds a few days prior to January 30, 1963. The platform itself was owned by Bullitt. The Sky Climber was assembled and attached to Bullitt's platform by an employee of Scaffolds.
On January 30, 1963, Marsland and Staton began their window washing using the platform and Sky Climber hoist. After descending two or three floors, the Sky Climber apparatus failed to function properly. As a result of the hoist's malfunction, Marsland and Staton were unable to control the descent of the platform, and the platform made its descent at an accelerated speed to the sidewalk below, a distance of approximately seven stories.
Marsland and Staton brought suit against Bullitt as well as Scaffolds and Western Gear for recovery of money damages for injuries sustained by them as the result of the accident. Both men contended they were severely and permanently injured. They contend Bullitt was negligent because it
failed in its duty to provide them with a safe place to work and on the contrary, it furnished them with a scaffold equipped with a hoist which scaffold, hoist or combination was unsafe, dangerous and defective.
The Sky Climber in question was assembled and fitted with a cable by Scaffolds in accordance with directions published by Western Gear. After assembly, the Sky Climber was attached to Bullitt's platform by Scaffolds in such a manner that the lower end of the Sky Climber cable passed through a lead pipe which had first been attached to the side of the platform, and the lower end of the cable then hung free beneath the platform. The unit thus assembled and attached to the platform was tested by Scaffolds, and it then appeared to function satisfactorily.
Bullitt admitted that it provided a scaffold and hoist for ABM's employees but denied and negligence on its part and contended that Marsland and Staton contributed to their injuries by their own negligence. Scaffolds likewise denied negligence and alleged that Marsland and Staton were guilty of contributory negligence.
Bullitt makes two encompassing assignments of error: first, that the court erred in not granting a motion for judgment n.o.v., and, second, that the court erred in not granting a motion for new trial. Various particulars are delineated under each of these assignments, but the central issue concerns the court's instruction on Bullitt's standard of care. Error is not assigned to this instruction; 4 rather, Bullitt says instruction 8 'constituted only the most general, vague and ambiguous statement of the law on the issue of appellant's alleged negligence.' The argument is that the negligence issue was not adequately presented without Bullitt's requested instruction 21, 5 plus either requested instruction 1 6 or requested instruction 6. 7
Bullitt claims these instructions which are supported by the evidence are necessary to present its theory of the case to the jury, Viz., that plaintiffs' injuries were caused by a latent defect in the hoist. We must determine if Bullitt's case was prejudiced by the failure to give its requested instructions. When the instructions given are adequate to allow a party to argue his theory of the case, it is not error to refuse other instructions. Cakowski v. Oleson, 1 Wash.App. 780, 463 P.2d 673 (1970); Laudermilk v. Carpenter, 76 Wash.Dec.2d 699, 457 P.2d 1004 (1969). This issue must be viewed in relation to the instruction given on the liability of the co-defendant Scaffolds. 8
What is the standard of care which Bullitt had to exercise for plaintiffs' benefit? They were employees of an independent contractor, ABM. The employee of an independent contractor stands in the same relation to the contractee as does a business invitee. Hartman v. Port of Seattle, 63 Wash.2d 879, 389 P.2d 669 (1964). This means in effect that the plaintiffs here may be regarded as if they were directly hired by Bullitt, because a servant working on his master's premises is also treated as an invitee. W. Prosser, Torts § 80 (3d ed. 1964). Thus, the standard of care which Bullitt had to exercise is an amalgam of the standards exercised for an employee and for an invitee.
An employee must be provided a safe place in which to work. Myers v. Little Church by the Side of the Road, 37 Wash.2d 897, 227 P.2d 165 (1951); 57 C.J.S. Master and Servant § 603 (1948); W. Prosser, Supra; and safe tools with which to work, 57 C.J.S., § 604, Supra, W. Prosser, Supra. A business invitee must be protected against defects in the premises known to the possessor or which could be discovered by a reasonable inspection. Ward v. Thompson, 57 Wash.2d 655, 359 P.2d 143 (1961); W. Prosser, § 61, Supra; Restatement (Second) of Torts § 343 (1945). The invitor is not liable for harm resulting from an unknown condition which could not have been discovered by a reasonable inspection.
The amalgam was presented in Hartman, 63 Wash.2d at 882, 389 P.2d at 672, which involved parties in the same status as plaintiffs and Bullitt here. The court said:
The duty owed to an invitee is to exercise reasonable care to maintain the premises in a reasonably safe condition, or to warn the invitee of any danger which is known or discoverable by a reasonable inspection on the part of the occupier and not known or not discoverable by the invitee using reasonable care for his own protection. Greenleaf v. Puget Sound Bridge & Dredging Co., 58 Wash.2d 647, 364 P.2d 796 (1961); Restatement, Torts § 343.
The duty to supply a safe place to work and safe tools is limited by what is known as discoverable by a reasonable inspection. There is no liability for an undiscoverable latent defect.
Having defined Bullitt's standard of care, we inquire whether the court's instruction adequately defined the standard. We observe that neither Bullitt nor Scaffolds would be liable for an undiscoverable latent defect. The complaint against both defendants was formed on terms of an unsafe, dangerous, and defective device. The evidence adduced at the trial was that the Sky Climber hoist was defective.
The jury was explicitly instructed that Scaffolds would not be liable for an undiscoverable latent defect. 9 Neither would Bullitt; yet, the jury was not told this. The court's instruction said Bullitt 'must exercise that degree of care which a reasonably prudent building owner or person in control would exercise under similar circumstances * * *' Instruction 8.
While it was no doubt possible for Bullitt to argue to the jury that it should not be held liable for some undiscoverable defect, the absence of such an instruction seriously prejudiced Bullitt's defense. On the one hand, the jury was instructed by the court that Scaffolds would not be liable for such a defect. On the other hand, Bullitt had to make the same argument to the jury on the basis of a negative implication. The dignity and prestige of the court were placed in the balance of justice on the side of Bullitt's co-defendant,...
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