Parsons v. Blount Brothers Construction Company

• Decision Date: 02 August 1960
• Docket Number: No. 14018.,14018.
• Citation: 281 F.2d 414
• Parties: Hazel PARSONS, Administratrix of the Estate of John E. Parsons, Deceased, Plaintiff-Appellant, v. BLOUNT BROTHERS CONSTRUCTION COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

281 F.2d 414 (1960)

Hazel PARSONS, Administratrix of the Estate of John E. Parsons, Deceased, Plaintiff-Appellant, v. BLOUNT BROTHERS CONSTRUCTION COMPANY, Defendant-Appellee.

No. 14018.

United States Court of Appeals Sixth Circuit.

August 2, 1960.

C. Richard Grieser, Columbus, Ohio, Dombey, Tyler, Richards & Grieser, by: Alex S. Dombey and C. Richard Grieser, Columbus, Ohio, and Jack McCann, Waverly, Ohio, on the brief, for appellant.

Arthur W. Wiles, Columbus, Ohio, Wiles, Doucher, Tressler & Koons, by: Arthur W. Wiles, Columbus, Ohio, on brief, for appellee.

Before MARTIN and WEICK, Circuit Judges, and HOLLAND, Senior District Judge.

WEICK, Circuit Judge.

Plaintiff below is the widow of John E. Parsons and administratrix of his estate. She brought this action in the District Court against Blount Brothers Construction Company and Walter Truland Corporation to recover damages for the alleged wrongful death of her husband. Jurisdiction was based on diversity of citizenship. Ohio substantive law controlled the issues. The case was tried to a jury. At the close of plaintiff's case, the District Court granted the motions of both defendants for a directed verdict in their favor, without giving any reasons for his action. Plaintiff has appealed from the judgment in favor of Blount. The judgment in favor of Truland has become final.

Plaintiff's claim against Blount was that her decedent was electrocuted and killed by reason of Blount's negligence while decedent was working on a construction job.

John Parsons was, at the time of his death, in the employ of the James F. O'Neill Company. He was a pipe-fitter by trade. O'Neill was the subcontractor for pipe work for the construction of a feeder building and facilities as a part of the Goodyear Atomic Energy Plant in Pike County, Ohio. Blount Brothers was the general contractor and Truland was the electrical subcontractor.

The area of construction was surrounded by a fence and the subcontractors and general contractor worked in and about the entire construction area. Three uninsulated wires energized with 13,800 volts of electricity, extended from outside the construction area to a pole just inside the fence in the construction area and then extended across the work area to another pole and to a transformer station in the area.

In the performance of his duties decedent often worked with a hydro-crane, but not as the operator. A hydro-crane is a type of crane mounted on the bed of a truck. It has a telescoping boom, which can be extended or withdrawn, depending on the nature of the work to be done. This particular hydro-crane had a maximum height of 32 feet when the boom was fully extended. The hydro-crane had been operated extensively over the entire construction area prior to the day of the fatal accident.

On the day of the fatal accident decedent was engaged in shifting pipe from one pile to another. The pipe was stock-piled under the high-tension wires previously mentioned. This area was most convenient to the "fab" shop where the pipe was prepared for installation in the main building. Decedent was on the ground, moving about and standing on piles of pipe. Hobart Johnson was operating the hydro-crane, the boom of which was fully extended. Decedent would hook a length of pipe to the crane cable and Johnson would then swing the pipe from one pile to another. The accident occurred in the course of moving pipe, when the boom of the crane in the extended position touched the overhead high-tension wires while the decedent was guiding a piece of pipe attached to the crane with his left hand and signalling to Johnson with his right hand.

Plaintiff's theory of liability is that Blount, through its safety engineer William McClurg, was charged with the duty of correcting any safety hazards in the construction area; that Blount knew or should have known of the danger inherent in the maintenance of the overhead uninsulated high-tension wires in close proximity to where men were required to work with a hydro-crane and should, in the exercise of ordinary care, have taken steps to correct the dangerous condition, but failed and neglected to do so. Plaintiff claims that Blount had a duty under the provisions of the Revised Code of Ohio § 4101.01 et seq. to provide decedent with a reasonably safe place in which to work and breached that duty.

The principal contention of defendant in this Court is that under the doctrine of Schwarz v. General Electric Co., 1955, 163 Ohio St. 354, 126 N.E.2d 906, it cannot be held responsible for this accident. See also: Ford Motor Co. v. Tomlinson, 6 Cir., 1956, 229 F.2d 873 and Wellman v. East Ohio Gas Co., 1953, 160 Ohio St. 103, 113 N.E.2d 629.

Plaintiff contends that those cases are not applicable to the instant factual situation and that Bosjnak v. Superior Sheet Steel Co., 1945, 145 Ohio St. 538, 62 N.E.2d 305, controls.

The third syllabus of Schwarz reads:

"Where the owner of premises employs an independent contractor to do work thereon, is not in control of the work area, does not participate in the work, and gives notice to the contractor or to those in charge of the work of the potential danger of contact with a high-tension electric line maintained on the premises, such owner is not legally obligated to give notice of such danger to the individual employees of such independent contractor who may be assigned by such contractor to unload steel beams at a site underneath such high-tension line" (Emphasis added.) 163 Ohio St. 354, 126 N.E. 2d 907.

Syllabus one of Bosjnak reads:

"An employee of an independent contractor, while engaged in the erection of a building upon premises, the possession and control of which are retained by the owner, is an invitee to whom the owner owes the duty of exercising ordinary care to maintain the premises in a reasonably safe condition for use in a manner consistent with the invitation, and to inform the invitee of hazardous conditions of the premises and of activities thereon unknown by and not obvious to the invitee" (Emphasis added.)

The controlling distinction between Schwarz and Bosjnak was stated by the Ohio Supreme Court, in the Schwarz opinion, to be:

"The Bosjnak case is distinguishable from the instant case in that in that case the defendant actually participated in the operations incident to and in connection with the erection of its building upon which the plaintiff was working for the independent contractor." 163 Ohio St. 354, 359, 126 N.E.2d 906, 909.

Thus, the determinative issue is whether defendant had custody and control of the premises.

There is no question that custody of the job site was in defendant. Blount was the principal contractor and was also actively engaged in work thereon. However, defendant denies that it had control over the subcontractors. In support of that contention defendant sought to prove that it had no right to direct or interfere with the manner or mode in which any of the subcontractors were performing their respective delegated tasks. In our opinion, that evidence was not conclusive with respect to the issues of the case. Plaintiff had only sought to show that defendant controlled safety features and abatement of hazards. If this were true it would be immaterial that defendant did not have control over other aspects, as to the method of carrying out the work, exclusive of safety.

The evidence disclosed that William McClurg was employed by Blount on the Goodyear job as "first aid man and safety engineer." He testified:

"As a safety engineer, I worked jointly with AEC under their supervision, more or less, and my duties were to go around through all the area that was under construction and anything that I seen that was hazardous to

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