Mudgett v. Marshall

• Decision Date: 01 May 1990
• Parties: David MUDGETT, et al. v. Barbara MARSHALL, et al.
• Court: Maine Supreme Court

Page 867

574 A.2d 867

David MUDGETT, et al. v. Barbara MARSHALL, et al.

Supreme Judicial Court of Maine.

Argued March 20, 1990.

Decided May 1, 1990.

Thomas F. Monaghan, Kevin G. Libby (orally), and Kim Anderson True, Monaghan, Leahy, Hochadel & Libby, Portland, for Mudgett.

John N. Kelly and Graydon G. Stevens (orally), Kelly, Remmel & Zimmerman, Portland, for Kimball.

Robert A. Cohen, Cohen & Cohen, Portland, for Leavitt.

Thomas A. Cox and Joel C. Martin (orally), Petrucelli, Cox & Martin, Portland, for Marshall.

Frederick C. Moore and James C. Hunt (orally), Robinson, Kriger, McCallum & Greene, P.A., Portland, for P.I.E.

Robert F. Hanson and James D. Poliquin (orally), Norman, Hanson & Detroy, Portland, for Megquier & Jones.

Before ROBERTS, WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.

GLASSMAN, Justice.

This appeal involves five cases that were consolidated for trial. ¹ The separate actions all arose out of an accident that occurred on August 31, 1981 when two steel frames collapsed during the erection of a chip storage building at the paper plant of S.D. Warren in Westbrook. Two steelworkers, Loren Kimball and Brian Leavitt, died as a result of the accident and a third worker, David Mudgett, was seriously injured. Mudgett and the personal representatives of the estates of Kimball and Leavitt each brought separate actions against Paper Industry Engineers, Inc. (PIE), Megquier & Jones Corp. (Megquier), and William H. Marshall, d/b/a William H. Marshall Associates (Marshall), ² alleging that the negligence of defendants in their respective roles in the design of the building caused the collapse and further alleging that Megquier was vicariously liable for Marshall's negligence. By its October order, the trial court consolidated all the cases for pretrial and discovery purposes. By its December 31, 1987 order, the court consolidated all the cases for trial.

A jury trial of the consolidated actions commenced on May 9, 1988 in the Superior Court (Cumberland County, Wernick, A.R.J.). The court denied the motions for directed verdicts made by each defendant at the close of the plaintiffs' cases. At the close of all the evidence, the court denied Marshall's motion for directed verdicts but granted PIE's motion for directed verdicts in its favor. The court granted Megquier's motion for directed verdicts in its favor on any issue concerning its independent negligence but reserved ruling on the issue of Megquier's vicarious liability for the negligence of Marshall. The cases were presented to the jury on the issue of whether Marshall was negligent and, if so, whether this negligence proximately caused the injuries suffered by the respective plaintiffs. By a special verdict form the jury found the legal cause of the plaintiffs' injuries to be Marshall's negligent failure to design steel to meet the specifications of the structure, thereby creating an unreasonable danger of injury to the plaintiffs engaged in erecting the structure that could not be eliminated, overcome or avoided by the erector's exercise of reasonable care. The jury awarded damages to each of the plaintiffs. Following the jury's verdicts against Marshall, the court directed verdicts in favor of Megquier on the issue of its vicarious liability. The court denied Marshall's motion for judgments notwithstanding the verdicts. All the plaintiffs appeal from the judgments directing verdicts in favor of Megquier; Mudgett and Kimball appeal from the judgments directing verdicts in favor of PIE. Marshall and Megquier cross-appeal from the judgments entered against Marshall. ³ We find no error in the record and affirm the judgments.

I

As a preliminary matter, PIE challenges the timeliness of the appeals of Mudgett and Kimball from the judgments entered on the directed verdicts in favor of PIE on the ground that the appeal was not filed within thirty days after the entry of the judgments. PIE argues that although the various actions were consolidated for trial, these judgments created final judgments in separate actions subject to the timeliness requirements for appeals mandated by M.R.Civ.P. 73. We disagree.

PIE does not, nor in view of the circumstances giving rise to these cases could it, challenge the propriety of the trial court's order consolidating all the actions for trial pursuant to M.R.Civ.P. 42. Implicit in any order consolidating cases for trial is the court's consideration of the least costly and most speedy means to secure a trial on the merits of the various cases as well as the most economical expenditure of judicial resources. When the trial court orders consolidation of separate actions for trial, these same considerations prevail in treating those actions as remaining consolidated for purposes of appeal. Here, the trial court did not rule on Marshall's motion for judgments notwithstanding the verdict until August 10, 1988. Each of these plaintiffs filed a notice of appeal within thirty days after the entry of the court's order denying Marshall's motion. We hold that Mudgett and Kimball complied with the time requirements for filing a notice of appeal set forth in M.R.Civ.P. 73. See also Kittery Electric Light Co. v. Assessors of Town of Kittery, 219 A.2d 744, 746 (Me.1966) (procedural unity ends at conclusion of trial when no formal order of consolidation but simply mutual understanding among parties and court that cases be tried together).

II

Mudgett and Kimball contend that the trial court erred in granting PIE's motion for directed verdicts in its favor, and all the plaintiffs contend that the trial court erred by granting Megquier's motion for directed verdicts in its favor. They argue that there was sufficient evidence to support a jury finding that PIE and Megquier were both negligent in their design review responsibilities and that such negligence was a proximate cause of the plaintiffs' injuries. Further, the plaintiffs contend that there was sufficient evidence before the jury to find Megquier vicariously liable for the negligence of Marshall. When reviewing the propriety of granting a defendant's motion for a directed verdict in its favor, we consider the evidence and every justifiable inference from that evidence in the light most favorable to the plaintiff to determine whether by any reasonable view of the evidence a jury verdict for the plaintiff could be sustained. Baker v. Mid Maine Medical Center, 499 A.2d 464, 466-67 (Me.1985); Packard v. Central Maine Power Co., 477 A.2d 264, 267 (Me.1984); Poirier v. Hayes, 466 A.2d 1261, 1263 (Me.1983).

The record reveals that the collapsed chip storage building was part of a larger building project undertaken by S.D. Warren. S.D. Warren acted as its own general contractor and subcontracted with other companies for portions of the project. It contracted with PIE to be the engineering consultant for the project. PIE designed the foundation for the chip storage building, decided on the general shape of the building and prepared the bid specifications for the building. By a bid package sent to several potential bidders, S.D. Warren requested proposals for the design, fabrication and erection of a structural steel building in the shape of a modified A-frame. S.D. Warren contracted with Megquier for the design and fabrication of the structural steel to be used in the construction of the building after deciding to have Cianbro, Inc., its major contractor on the project, erect the building. Megquier subcontracted to Marshall the design of the steel members to be used in the building. After the collapse of the frames, Marshall discovered that he had made computational errors in calculating the necessary size of certain of the building's steel structural members.

Our review of the record discloses that the trial court properly determined that the plaintiffs failed to offer sufficient evidence to sustain a jury verdict that either PIE or Megquier had a duty to review Marshall's design computations to detect any arithmetic errors. The trial court properly granted directed verdicts in favor of PIE and Megquier on the plaintiffs' claims that the negligent review of Marshall's design drawings by PIE and Megquier was a proximate cause of the injuries suffered by the plaintiffs.

We also find no merit in the plaintiffs' argument that under the provisions of Restatement (Second) of Torts §§ 414 & 416 there was sufficient evidence for a jury to find Megquier vicariously liable for Marshall's negligence by reason of the control retained over Marshall's work or the peculiar risk to others created by Marshall's computations. The general principle is well established that an employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servant. Restatement (Second) of Torts § 409 (1965). The record discloses that there was no evidence that Megquier controlled Marshall's day-to-day design work, his "methods" or the "operative detail" involved in Marshall's design of the structural steel. See Restatement (Second) of Torts § 414 comment c (1965). ⁴ Nor is the "peculiar risk" exception to the general principle of an employer's non-liability applicable in the present case. Section 416 of Restatement (Second) states that an employer may be held vicariously liable for work done by an independent contractor if "the employer should recognize as likely" that the work will "create during its progress a peculiar risk of physical harm to others unless special precautions are taken...." Section...