Martin v. Alley Const., Inc., 95-25

CourtUnited States State Supreme Court of Wyoming
Citation904 P.2d 828
Docket NumberNo. 95-25,95-25
PartiesJoel Patrick MARTIN, Personal Representative of the Estate of Joel Irskin Martin, deceased, Appellant (Plaintiff), v. ALLEY CONSTRUCTION, INC.; and Patrick Alley, Appellees (Defendants).
Decision Date23 October 1995

Glen H. Johnson of Johnson Huffman, P.C., Rapid City, South Dakota; James L. Edwards of Stevens, Edwards & Hallock, P.C., Gillette, for appellant.

Daniel E. Ashmore, Mark J. Connot of Gunderson, Palmer, Goodsell & Nelson, Rapid City, South Dakota; J. Stan Wolfe, Gillette, for appellees.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

GOLDEN, Chief Justice.

In this appeal we determine whether the district court properly granted summary judgment in a co-employee, culpable negligence 1 case.

We affirm.

Joel Patrick Martin 2 raises these issues:

Did the District Court err in concluding that material fact issues do not exist?

Did the District Court improperly apply the law of comparative negligence in this culpable negligence case?

Patrick Alley 3 summarizes the issue thus:

Did the district court properly grant summary judgment as to the issue of Patrick Alley's alleged culpable negligence?

During the early months of 1992, Alley was constructing an 80' X 180' metal building in Gillette. On March 3, 1992, the metal siding had been completed and about 60% of the roofing insulation and metal roof skin had been installed. The insulation was made of four-inch thick fiberglass with a vinyl white covering and was installed in rolls that ran from eave to eave over the top of the building. At the time of this accident, the peak of the roof was only covered with the fiberglass insulation until the roofing was sufficiently complete so that the ridge cap could be installed. The "gap" at the peak of the roof was approximately twelve to eighteen inches wide and may have been wider in some areas. In addition, the last six to eight inches of the roof, just before the "gap," was not secure and could buckle under the weight of a man.

On March 3, 1992, Martin showed up at the work site to see if day-work was available (one of Alley's employees told him such work might be available). Because of the possibility of windy conditions, Alley needed extra men to help with the roofing and to do other tasks as the metal sheets were being installed. 4 Martin was directed to come up on the roof. He was wearing cowboy boots. The pitch of the roof on the building was very gradual. Alley testified he told and demonstrated to Martin where to step and where not to step, directing him to stay away from the insulation "gap." Martin was walking somewhat behind and to the left of Alley as they moved across the roof. Alley looked over at Martin as they crossed the "gap" and saw him go through the roof. Martin fell approximately twenty-eight feet to the concrete pad which formed the floor of the metal building. Martin had been on the roof less than ten minutes in all.

On January 14, 1994, suit was filed alleging Martin's injuries resulted from Alley's culpable negligence. Alley answered Martin had already received worker's compensation benefits and he had not been culpably negligent in the circumstances leading to Martin's fall. 5 Alley filed a motion for summary judgment which was granted by the district court.

Martin contends the district court erred in concluding there were no genuine issues of material fact and Alley was entitled to judgment as a matter of law. Martin's theory is this: Alley was exercising direct supervisory control over Martin at the time of the accident and could have prevented the fall; Alley knew the metal had an oily surface, was slippery and that Martin should have been instructed not to wear cowboy boots; Alley did not take the time to properly instruct Martin about where or how to step, that the edge of the metal roof near the insulation might buckle under his weight, and the insulation "gap" was a serious danger. He also contends Alley was more concerned with telling him where not to step, because of possible damage to the roof, than with the potential danger to Martin.

Martin maintains, whereas Alley and Alley's foreman on this job testified in deposition and affidavit that Martin had been instructed how to safely walk across the roof, other employees contradicted that testimony, thus creating a genuine issue of material fact. He refers to the deposition of Bobby Hart as supporting that proposition but Hart stated in his deposition Alley specifically instructed Martin where to walk and that "whatever you do, don't step in the middle." Martin also refers to the deposition of Corbin Moudy, another employee on this job. Moudy testified he really did not hear the conversation in any significant detail, but he did observe Alley showing Martin where to step and saying "that's where you step" (pointing to the purlins 6). Another point made by Martin in his brief is Martin was not told he should not step on the metal near the "gap" because it could give way and the oil-coated metal was very slippery. Although no one really saw exactly what happened, it appeared Martin stepped on the edge of the metal roofing because it was bent at the location where he fell through the insulation material. Martin also contends there is a dispute as to whether, when he fell through the roof, he was carrying, or dragging, or helping Alley carry a piece of metal sheeting. Alley related Martin was not carrying, nor helping to carry, a piece of metal but that he was taking Martin to the north side of the roof to show him how to apply adhesive stripping which went between the insulation and the metal sheeting. The only evidence to the contrary is a supposition that Martin was carrying a piece of metal because there was one lying on the roof near the spot where he fell through.

Continuing, Martin contends it would have been better and safer to have placed the ridge cap over the "gap" as the construction project went along, thus reducing the hazard to workers such as Martin. However, the only evidence in the record, other than Martin's speculation, was to the effect that placing the ridge cap on as the last task in finishing the roof was standard practice and not a safety hazard so long as employees followed directions not to step on or near it. The reason the ridge cap was placed last was because it had to be on straight and that determination could not be made until all the other metal sheeting for the roof was in place.

Martin also points to a total lack of safety training or safety meetings as an element of his claim of culpable neglect. The record does reflect no formal training was accomplished by Alley and, of course, the only training of any sort Martin received was the few minutes of directions given by Alley just before Martin fell through the roof.

Finally, Martin contends Alley should have noted Martin was wearing cowboy boots, that cowboys boots would present a significant hazard on the roof, and Alley should not have allowed Martin to go to work wearing cowboy boots.

Our standard of review in cases such as this is well-delineated. Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law. We review a summary judgment in the same light as the district court, using the same materials and same standards. We examine the record from the vantage point most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which may fairly be drawn from the record. Smith v. Throckmartin, 893 P.2d 712, 714 (Wyo.1995) (quoting Baros v. Wells, 780 P.2d 341, 342 (Wyo.1989)); Morris v. Smith, 837 P.2d 679, 681 (Wyo.1992). While summary judgment is seldom appropriate in simple negligence cases, culpable negligence...

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