Nagler v. United States Steel Corporation

• Decision Date: 09 July 1973
• Docket Number: No. 72-1601.,72-1601.
• Citation: 486 F.2d 794
• Parties: Richard Allen NAGLER and Donna Diane Nagler, Plaintiffs-Appellees, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

486 F.2d 794 (1973)

Richard Allen NAGLER and Donna Diane Nagler, Plaintiffs-Appellees, v. UNITED STATES STEEL CORPORATION, Defendant-Appellant.

No. 72-1601.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 1973.

Decided July 9, 1973.

Rehearing Denied July 30, 1973.

G. Edward McHie, Hammond, Ind., George W. Gessler, Harlan L. Hackbert, Chicage, Ill., for defendant-appellant.

Joel C. Levy, Hammond, Ind., Allen L. Ginsberg, Chicago, Ill., for plaintiffs-appellees.

Before CLARK, Associate Justice^*, CASTLE, Senior Circuit Judge, and STEVENS, Circuit Judge.

CASTLE, Senior Circuit Judge.

A jury verdict awarded plaintiff Richard Allen Nagler $1,030,000.00 for injuries sustained while he was working in defendant's steel mill. His wife was awarded $150,000.00 for loss of consortium. The United States Steel Corporation prosecutes this appeal contesting its liability for plaintiffs' damages.

As part of its operations at Gary, Indiana, United States Steel operates a 46" Slab Mill, where ingots of assorted sizes are heated in furnaces called soaking pits to approximately 2350 ° before being rolled out into variously-shaped slabs. The mill contains about fifty-six soaking pits arranged in batteries of four, every battery having its own heat source. Each individual pit is twenty-seven feet long, nine and a half feet wide, and fifteen feet high. Each is topped with a movable cover that slides on rails to allow overhead cranes to lower ingots in for heating.

A typical soaking pit at the mill consists of three steel walls lined with a 30-inch thickness of brick refractory material. The fourth wall, which serves as a common wall between two soaking pits, is a 40-inch barrier constructed of brick. The top 1 1/2 feet of each wall are capped with coping or curbs, which consist of plastic-like bricks that are pounded down on the refractory material and are fused together by the heat of the furnace.

On occasions it is necessary to repair and replace the refractory material and/or coping in each soaking pit. Several causes of deterioration necessitate repairs. The most prominent is the accumulation of slag, which coats the pit and gradually eats away at the refractory walls, making them sag. At times crane operators accidentally drop ingots while they are lowering them into or removing them from a pit, causing the floors of the pit to become beveled or the walls to be damaged. Fins which protrude from ingots formed in imperfect molds may also strike the walls or the coping on occasion.

In order to determine when a given soaking pit must be repaired or rebuilt, certain U.S. Steel officials make visual inspections of the pits while they are in operation and when the walls are consequently red from heat. If this inspection, conducted from a catwalk several feet above and beyond the pit, discovers damage or wear, the pit is shut down and another inspection is made when the walls cool somewhat to determine exactly what repairs or replacements are necessary. This later inspection is apparently conducted from walkways level with the top of the pit and running perpendicular to the twenty-seven-foot long walls of the pit. Three kinds of repairs can be ordered after inspection—the pit can be "gunned" or sprayed with a substance that forstalls weakening, masonry repairs can be made, or the walls or portions of them can be torn down and completely rebuilt.

When the decision has been made to rebuild portions of a pit lining, U.S. Steel has usually called upon Furnace Services, Inc., an independant contractor, to tear down the coping and/or refractory brick in preparation for reconstruction by U.S. Steel masons. To accomplish its tear-down work, Furnace Services makes use of its own "pit machine," a telescopic-armed device which straddles and is locked onto the rails on which the pit cover normally slides. The arm of the machine reaches into the pit and, in a jack hammer-like manner, its point digs into the refractory material, causing it to fall when the point is withdrawn. The operator of the pit machine usually stands or sits above the pit and operates the device with a control box of several buttons.

Before Furnace Services knocks refractory material from a pit or wall, it removes the dumping bells and plates from the floor of the soaking pit to open up two holes approximately three feet by nine and one-half feet. Debris knocked from a wall falls or is pushed by a paddle attached to the pit machine through these holes into the basement below the pit, where it is removed by a Furnace Services employee with a payloader tractor.

On August 27, 1969, U.S. Steel engaged Furnace Services to work on pit 11D in the 46" Slab Mill. A job order and diagram given to the pit machine operator specified that the Furnace Services crew was to remove the refractory material and coping on three walls and the floor of the pit, but that the twenty-seven-foot long south wall serving as the common wall between pits 11D and 11C was to be left standing. Demolition was started at 8:00 in the morning by a three-man work crew consisting of a pit machine operator, a laborer, and plaintiff Richard A. Nagler, who operated the payloader under the pit. At 3:30 a new pit machine operator took over the tear-down task, but since Furnace Services did not have another payloader operator available, Nagler continued the basement cleanup task. Sometime after 9:00 p. m., when the pit machine operator had ceased knocking bricks from the walls and just as an overhead crane was passing above the pit, Nagler drove under one of the 3 x 9 1/2 foot dumping holes to pick up another load of rubble. At this point a large chunk of coping fell from the south division wall, passed through the dumping hole, and struck Nagler. He sustained a compression fracture to his first lumbar vertebra and had his spinal cord severed. He is now paralyzed from the waist down.

The testimony and evidence produced at trial will be recounted where relevant to the consideration of the various issues raised by defendant United States Steel on this appeal: 1) whether the district court erred in failing to direct a verdict in its favor because the evidence failed as a matter of law to prove that it was negligent and because an independent contractor had control over the area where plaintiff was performing his work, and 2) whether the district court erred in refusing defendant's tendered instructions on assumption of risk and the effect of federal income taxes upon damages awarded.

I. Failure to Direct Verdict in Favor of Defendant.

U.S. Steel argues that the trial court should have directed a verdict in its favor because the evidence failed to establish that it was guilty of negligence that proximately caused plaintiff's injuries. Its two-pronged theory on appeal contends that it was not shown to be negligent in its inspection of the soaking pit before turning control over the pit to Furnace Services, and that it could not be liable for any accidents occurring during the time that Furnace Services was working on the pit, since that independent contractor had exclusive control over the pit.

Two rules of legal liability for injury are involved in this case. The first, understandably stressed by the plaintiff, holds that U.S. Steel owed Richard Nagler the duty to provide a safe place to work, since Nagler, as an employee of an independent contractor, was a business invitee of U.S. Steel. Broadhurst v. Davis, 146 Ind.App. 329, 330, 255 N.E.2d 544, 545 (1970). Such a duty obligated U.S. Steel to exercise reasonable care to inspect the soaking pit to discover defects or dangerous conditions in it and to warn Furnace Services and its employees of these dangers. Verplank v. Commercial Bank, 145 Ind.App. 324, 334, 251 N.E.2d 52, 58 (1969); Broadhurst v. Davis, supra, 146 Ind. App. at 330-331, 255 N.E.2d at 545-546, Hoosier Cardinal Corp. v. Brizius, 136 Ind.App. 363, 376-77, 199 N.E.2d 481, 487-488 (1964). On the other hand, the defendant stresses the rule that an owner of property is not generally liable for injuries to employees of an independent contractor when the owner exercises no direction over the work of the employees. Marion Shoe Co. v. Eppley, 181 Ind. 219, 222-223, 104 N.E. 65, 66 (1914); Bauer v. Plumbers' Supply Corp., 137 Ind.App. 106, 110-111, 205 N.E.2d 567, 569 (1965); see also Wolfe v. Bethlehem Steel, 460 F.2d 675, 677 (7th Cir. 1972); Dismore v. Aetna Casualty, 338 F.2d 568, 573 (7th Cir. 1964). These two rules, of course, are compatible: An owner is not liable for negligent injuries to an employee of an independent contractor unless he actively participated in the negligent act causing the injury or unless he failed to warn of hidden dangers on the premises of which he had or ought to have had knowledge and of which the employee had not. Titan Steel Corporation v. Walton, 365 F. 2d 542, 546 (10th Cir. 1966). The issue, then, is whether there was sufficient evidence for a jury to find U.S. Steel liable under this theory.

In determining whether to direct a verdict, a court must consider whether there is any evidence from which a reasonable inference can be drawn that tends to support one or more allegations of negligence charged in a complaint. If so, there is a question for the jury and the direction of a verdict is improper. Adkins v. Elvard, Ind.App., 294 N. E.2d 160, 162 (1973); Wallace v. Doan, Ind.App., 292 N.E.2d 820, 826 (1973); United States Steel v. Warner, 378 F.2d 995, 998 (10th Cir. 1967). Naturally the mere existence of a defect is insufficient to establish liability of the owner of a business. But we believe that...