Padilla v. Gulf Power Co., SS-24

CourtCourt of Appeal of Florida (US)
Citation401 So.2d 1375
Docket NumberNo. SS-24,SS-24
PartiesBen C. PADILLA, Appellant, v. GULF POWER COMPANY, Appellee.
Decision Date13 August 1981

Jack Chisolm, of Hipsh & Chisolm, P. A., Pensacola, for appellant.

Robert P. Gaines, of Beggs & Lane, Pensacola, for appellee.

ROBERT P. SMITH, Jr., Judge.

Padilla appeals from a summary final judgment for Gulf Power in this action for personal injury damages. Factual issues as yet unresolved require reversal.

Padilla, an employee of Foster-Wheeler Energy Corp., a maintenance contractor, was injured while working for Foster-Wheeler on Gulf Power's premises. Foster-Wheeler was replacing a motor on a coal crusher at Gulf Power's steam electric generating plant, using a fork lift truck and extensible boom owned by Gulf Power and supplied to Foster-Wheeler for precisely the kind of heavy lifting operation Foster-Wheeler's employees, including Padilla, were engaged in when he was injured. Padilla's hand was crushed by a falling motor when the boom in its extended position broke under the motor's excessive weight. The manufacturer warned of the extended boom's limited lifting capacity on a decal that was attached to the boom when Gulf Power purchased the truck, but that warning was obliterated at the time Padilla or his co-workers overloaded the extended boom on this occasion. Previously the boom had broken due to an overload, and Foster-Wheeler, at Gulf Power's request, made the repairs. When it added steel reinforcement to the boom base, Foster-Wheeler covered up the warning decal that listed the lifting capacities of the extensible boom in its extended and retracted positions. There is no evidence that Gulf Power knew this before the accident.

Padilla's remedy against Foster-Wheeler was of course under the Workers' Compensation Act, Chapter 440, Florida Statutes. Against Gulf Power, Padilla's allegation was that Gulf Power negligently failed to maintain the forklift and boom assembly in a reasonably safe condition and failed "to label said extensible boom with its maximum capacity so as to put employees on notice of said capacity."

In reviewing the summary judgment record, we hold preliminarily that a jury well could have found Foster-Wheeler negligent in covering up the manufacturer's weight capacity warning decal. The manufacturer affixed the decal to the machine for a purpose, that being to notify users who were otherwise unwarned that the extensible boom could collapse if loaded beyond its stated design limits. By analogy to decisions finding actionable negligence in conduct by the owner of machinery nullifying the manufacturer's safety device in potentially dangerous machinery, 1 we think a jury well could have found negligence in Foster-Wheeler's obliteration of the manufacturer's warning decal. While not disputing Foster-Wheeler's negligence, the trial court exonerated Gulf Power on the ground that Foster-Wheeler was an independent contractor for whose negligence Gulf Power was not responsible.

Because the parties assume it, we too assume that the relationship between Foster-Wheeler and Gulf Power was generally that of independent contractor and contractee, and that the contractor, Foster-Wheeler, was typically autonomous in its right to control the manner of its performance of the contracted maintenance services. 2 This record does not reveal the actual contract between the parties, and the other evidence is sparse on the issues of control and the right to control maintenance activities. Within the assumed relationship of independent contractor and contractee, then, Gulf Power purchased a fork lift machine necessary for the maintenance of its plant and turned that machine over to Foster-Wheeler.

Green v. Sansom, 41 Fla. 94, 103, 25 So. 332, 335 (1899), fixes Gulf Power's responsibility in undertaking to furnish machinery for use by Padilla, an independent contractor's employee. The Court there held that the injured Sansom was shown to be Green's servant, not the servant of an independent contractor engaged by Green, so (in those days before workers' compensation) Sansom was held entitled to recover for any negligence by his master, Green, in furnishing him a defective rope. Yet the Court held also that Green, having undertaken to furnish the tools necessary for the work, would have had the same duty toward Sansom had he been found, instead, to be the employee of an independent contractor engaged to do the work:

Where the employer undertakes to furnish his own employee, or those of an independent contractor, some of the implements or instrumentalities for executing the required work, he thereby assumes a duty to exercise ordinary and reasonable care, measured by the surrounding circumstances, to provide such instrumentalities as will be reasonably safe and suitable. (citations omitted)

Green further illustrates how the contractee such as Green or Gulf Power may satisfy its undertaken duty "to provide such instrumentalities as will be reasonably safe and suitable" for use by affected employees. The Court reversed Sansom's judgment against Green, holding that the rope selected by Sansom from among those supplied by Green was apparently sound, containing no discoverable defect when supplied, but that such ropes rotted after long use. Judging the conduct of Green as of the time he initially supplied the rope, the Court found no negligence. The decision thus suggests that a contractee may be liable for negligently supplying his contractor's employee an unfit tool or machine, but not liable for failure to monitor its continued suitability while in the use and control of the independent contractor's employees. This rule is in accord with authorities reasoning that a contractee supplying machinery to an independent contractor has, under such an arrangement, no effective control over its maintenance and repair. 3

This record contains no comparable showing that Gulf Power simply bought and furnished the forklift boom assembly to Foster-Wheeler, surrendering with the machine all power to control what, when, how and by whom repairs to the machine were to be made. 4 Gulf Power's answers to interrogatories revealed that in purchasing the machine Gulf Power required the manufacturer to modify the boom to receive the forks, and that Gulf Power later contracted with Randolph Yale Industrial Truck Company to replace and repair various components of the forklift. Gulf Power's plant manager Lee testified that "we performed some electrical maintenance on the forklift, Gulf Power did," and Foster-Wheeler's superintendent Miller testified that Gulf Power had and exercised control by authorizing repairs and specifying who should make them:

A. We have sent the forklift out and had it repaired before.

Q. Foster-Wheeler did this?

A. Well, no sir. Gulf Power was the one that paid for having it repaired. The forklift belongs to them.

Q. Did you get some sort of authorization before sending it out?

A. Yes. Well, they generally send it out theirselves when it has to be repaired.

And before Foster-Wheeler made the repairs that covered up the manufacturer's warning decal, Mr. Miller testified, he checked first with Gulf Power's manager:

Q. All right. Did you have Gulf Power's authorization to repair this thing or did you just go ahead and repair it?

A. We just went ahead and repaired it, I presume. I did talk to them about it and he asked me if we could fix it and I told him yes, so we went ahead and fixed it. Anything like this, I always talk over with Mr. Lee out there.

Far from showing adequately for summary judgment that Gulf Power relinquished to its contractor the power to decide by whom and how Gulf Power equipment should be repaired, this record suggests the basis for a contrary jury finding: that Gulf Power, choosing to own the machines required for its regular plant maintenance by a contractor who used those machines for that purpose and no other, saw to their repair in one way or another sometimes sending machines out for repair, sometimes allowing Foster-Wheeler to repair, but always retaining and being understood as retaining power to decide all significant questions pertaining to the repair of its equipment. Thus did Gulf Power penetrate and occupy some of the realm of its putative independent contractor. Having thus retained significant control over Foster-Wheeler's employees in the activity that contributed (so a jury might find) to Padilla's injury, Gulf Power's responsibility for the negligence of those employees is the same as if Gulf Power's own employees had obliterated the warning decal, or if Gulf Power sent the machine out to an independent welder who obliterated the warning decal, in consequence that Gulf Power, furnishing the machine anew to Foster-Wheeler's employees, negligently failed "to provide such instrumentalities as will be safe and suitable" for their use. Green, supra.

A contractee's true relinquishment of power to control the details of his contractor's work is not to be mistaken for its counterfeit, a contractee's negligent failure to exercise his retained power to control. Several evidentiary factors converge to present a jury question on this issue: Gulf Power's purchase and adaptation of the machine to do its particular maintenance; Gulf Power's need for the maintenance, and for the machine, in its regular business of operating the plant from day to day; the machine's exclusive use for that purpose by a contractor's employees who went daily to work at Gulf Power's premises to maintain Gulf Power's plant with Gulf Power's equipment; and Gulf Power's retention of the power to control the repair of its equipment. The last mentioned element is the indispensable one; the preceding list both points to and derives its significance from Gulf Power's retention of the power to control. See F. Harper and F. James, Law of Torts, § 26.11:

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