McGregory v. LLOYD WOOD CONST. CO.

• Decision Date: 02 April 1999
• Docket Number: No. 1971649., No. 1971648
• Citation: 736 So.2d 571
• Parties: Kimberly McGREGORY et al. v. LLOYD WOOD CONSTRUCTION COMPANY et al. Annette Savors et al. v. Lloyd Wood Construction Company et al.
• Court: Alabama Supreme Court

736 So.2d 571

Kimberly McGREGORY et al. v. LLOYD WOOD CONSTRUCTION COMPANY et al.

Annette Savors et al. v. Lloyd Wood Construction Company et al.

Nos. 1949.

Supreme Court of Alabama.

April 2, 1999.

Rehearing Denied May 21, 1999.

Leila H. Watson of Cory, Watson, Crowder & DeGaris, P.C., Birmingham, for appellants.

John A. Owens, M. Bradley Almond, and Anna Northington Hutcheson of Owens & Almond, L.L.P., Tuscaloosa, for appellee Lloyd Wood Construction Company, Inc.

S. Allen Baker, Jr., R. Bruce Barze, Jr., and Charles A. Burkhart of Balch & Bingham, L.L.P., Birmingham, for appellee Alabama Power Company.

HOUSTON, Justice.

Kimberly McGregory and Brittany McGregory, minor dependents of Jesse Gibbs, suing by and through their mother, Geneva McGregory; and Annette Savors, as administratrix of the estate of Eugene Bush, and Scarla Savors, a minor dependent of Eugene Bush, suing by and through her mother, Annette Savors, appeal from judgments in two wrongfuldeath actions. These two actions were tried together. Both actions were based, in part, on allegations of negligence and wantonness on the part of Lloyd Wood Construction Company, Inc. ("Lloyd Wood"), and Alabama Power Company ("APCo").¹ We affirm.

Eugene Bush and Jesse Gibbs were killed at a construction site on Watermelon Road in Tuscaloosa County when they came in contact with electricity passing through an uninsulated high-voltage power line owned by APCo. Lloyd Wood was the general contractor for the construction project; Bush and Gibbs were employees of a subcontractor, Harpole Steel Buildings, Inc. ("Harpole"), which had been hired to erect a building on the site.

The building was situated approximately six feet from the northern property line of the site. APCo's power line ran along the length of that property line, approximately 28 feet above the ground. The accident occurred when a steel cable attached to a crane contacted the power line; Harpole owned the crane and the Harpole crew had been using it to move scaffolding. Because the scaffolding was too heavy to move by hand, the crew had attached the crane's cable to the scaffolding and had used the crane to move it from point to point around the building as needed. The cable had been left attached to the scaffolding between the moves. Contact with the power line occurred when the crew was working close to the power line and the boom on the crane "leaked down" (i.e., lowered) because of a problem in the crane's hydraulic system. The Harpole crew had been aware of the problem in the boom for two to three years before the accident. Gibbs, who was standing on the scaffolding when the steel cable contacted the power line, was electrocuted immediately. Bush was electrocuted when he came to aid Gibbs and touched him while he was still in contact with the scaffolding. APCo had not been notified that a crane would be used in close proximity to the line, and it had not been asked to insulate or de-energize the line or to take any steps to protect the Harpole crew.

The Claims Against Lloyd Wood

The plaintiffs' complaints were based, in part, on allegations that Lloyd Wood had breached a duty to maintain a safe workplace for the employees of its subcontractors. Specifically, the plaintiffs alleged that Lloyd Wood had failed to adequately warn Bush and Gibbs of the danger posed by the power line or to protect them from that danger. The trial court entered a partial summary judgment for Lloyd Wood, stating:

"With respect to the `Renewed Motion for Summary Judgment On Behalf of Defendant, Lloyd Wood Construction Co., Inc.,' the Court had reviewed prior to said hearing all submissions in support of, and in opposition to, the same. At the hearing, the Court heard extensive argument from [the plaintiffs' attorney] and [from Lloyd Wood's attorney].

"The Court finds that there is no genuine issue of material fact relevant to the general claims and theories of liability asserted against Lloyd Wood Construction Co., Inc., by the Plaintiffs in these cases and that said Defendant is entitled to judgment as a matter of law as to said general theories and claims. However, the Court does not find that all genuine issues of material fact have been eliminated with respect to the respective Plaintiffs' claims and theories of liability predicated on the duties and obligations which might legally be deemed to arise out of the `Projects— Northport, Alabama Area Accident Prevention & Safety Plan' promulgated by Lloyd Wood Construction Co., Inc. At this point, the Court is unable to state with precision exactly what the cleavage will be between the precluded causes of action and theories of liability, with respect to which it is granting summary judgment at this time, and the independently existing causes of action and theories of liability which might be legally cognizable as emanating from the duties and responsibilities committed to and assumed by Lloyd Wood Construction Co., Inc., by said `Plan' and the posting and other publication of the same. Further, the Court is not committing that any causes of action or theories of liability predicated on the commitments and undertakings contained in said document would survive a motion for a judgment as a matter of law made at an appropriate point during trial. Rather, the Court is simply stating that, at this summary judgment stage, the Court considers that genuine issues of material fact remain with respect to causes of action and theories of liability which might be premised on said document and its involvement in the relationships and circumstances underlying these cases.

"In conclusion, what the Court is now saying is that any cause of action or theory of liability upon which the Plaintiffs are allowed to proceed at trial will have to be legally premised and predicated on, and legally arise out of, the undertakings of Lloyd Wood Construction Co., Inc., established by said `Projects—Northport, Alabama Area Accident Prevention & Safety Plan.'"

The case proceeded to trial on the "theories of liability predicated on the duties and obligations which might legally be deemed to arise out of the `Projects— Northport, Alabama Area Accident Prevention & Safety Plan'" ("the safety plan") promulgated by Lloyd Wood. The jury was instructed to determine whether Lloyd Wood was liable for negligence (the trial court had dismissed the wantonness claim) in its performance of a duty assumed under the safety plan. The jury was also instructed to determine whether negligence on Gibbs's part had contributed to his death. The jury returned a verdict for Lloyd Wood; the trial court entered a judgment on that verdict.

Three issues are presented in regard to the claims against Lloyd Wood:

1) Whether the trial court erred in entering the partial summary judgment 2) Whether the trial court erred in ruling that the plaintiffs waived their objection to the composition of the jury, an objection based on the holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and,

3) Whether the trial court erred in instructing the jury on Ala.Code 1975, § 37-8-52.

With respect to the first issue, we note that the duty generally owed by a general contractor to warn a subcontractor of dangers in the workplace was discussed in Breeden v. Hardy Corp., 562 So.2d 159 (Ala.1990):

"`As invitor, ... the general contractor[] was under a duty to have the premises free from danger, or if they were dangerous, to give its invitee [the employee of the subcontractor], sufficient warning to enable him, through the exercise of reasonable care, to avoid the danger. This duty includes the duty to warn the invitee of danger of which the invitor knows or ought to know, and of which the invitee does not know. Secrist v. Mark IV Constructors, Inc., 472 So.2d 1015 (Ala.1985); Southern Minerals Co. v. Barrett, 281 Ala. 76, 199 So.2d 87 (1967); McLeod v. McBro Construction Co., 525 So.2d 1353 (Ala.1988).

"`A general contractor is not responsible to a subcontractor for injury from defects or dangers which the subcontractor knows of, or ought to know of. "If the defect or danger is hidden and known to the owner, and neither known to the [sub]contractor, nor such as he ought to know, it is the duty of the owner [general contractor] to warn the [sub]contractor and if he does not do this, of course, he is liable for resultant injury." Veal v. Phillips, 285 Ala. 655, 657-58, 235 So.2d 799, 802 (1970).

"`The duty to keep an area safe for invitees is limited to hidden defects which are not known to the invitee and would not be discovered by him in the exercise of ordinary care. All ordinary risks present are assumed by the invitee, and the general contractor or owner is under no duty to alter the premises so as to [alleviate] known and obvious dangers. The general contractor is not liable to an invitee for an injury resulting from a danger that was obvious or that should have been observed in the exercise of reasonable care. Beck v. Olin Co., 437 So.2d 1236 (Ala.1983); Quillen v. Quillen, 388 So.2d 985 (Ala.1980). The entire basis of an invitor's liability rests upon his superior knowledge of the danger that causes the invitee's injuries. Secrist, supra; Gray v. Mobile Greyhound Park Ltd., 370 So.2d 1384 (Ala. 1979). If that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable. Secrist, supra.'"

562 So.2d at 160, quoting Heath v. Sims Bros. Constr. Co., 529 So.2d 994, 995 (Ala. 1988).

In Armstrong v. Georgia Marble Co., 575 So.2d 1051, 1053 (Ala.1991), this Court stated:

"In Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So.2d 474 (1966), this Court held that any duty on the part of the defendant to warn of dangers in the workplace would ordinarily be discharged by giving notice of the dangers to all supervisory personnel of the plaintiff. In that case, the plaintiffs employer had contracted with the defendant to repair a boiler. The plaintiffs employer knew of the

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