Pope v. City of Talladega

• Decision Date: 24 July 1992
• Citation: 602 So.2d 890
• Parties: Helen Ruth POPE v. CITY OF TALLADEGA, et al. 1910871.
• Court: Alabama Supreme Court

Page 890

602 So.2d 890

Helen Ruth POPE v. CITY OF TALLADEGA, et al.

1910871.

Supreme Court of Alabama.

July 24, 1992.

R. Gordon Pate and Roger K. Fuston of Pate, Lewis & Lloyd, Birmingham, for appellant.

William W. Lawrence of Wooten, Thornton, Carpenter, O'Brien and Lazenby, Talladega, for appellees.

HOUSTON, Justice.

This is a premises liability case in which an employee of an independent contractor hired by a premises owner was killed during the progress of the work on a construction project.

The facts pertinent to a resolution of this case are undisputed: The Water and Sewer Board ("the Board") of the City of Talladega ("the City") owned property on which new water filters were to be constructed at the City of Talladega Water Treatment Plant. The Board hired Burgin Construction Company as general contractor to perform the construction work, part of which required Burgin to excavate at depths of approximately 15 feet. Under the contract with the Board, Burgin became "solely and completely responsible for conditions of the job site, including safety of all persons and property affected directly or indirectly by his operations during the performance of the work." At a preconstruction conference, it was specifically noted that "in accordance with the contract documents, the contractor [Burgin] is responsible for all matters associated with safety at the job site." The City hired Paul B. Krebs & Associates, Inc. ("Krebs & Associates") to ensure that Burgin adhered to and followed the plans and specifications issued by the City for the construction work. Prior to Burgin's taking over the project, no excavation work had begun, nor had the ground or the property been disturbed. After Burgin began the project, neither the City nor the Board had any employees or representatives at the construction site. Burgin employed Donald Salter Pope to assist in the excavation work, and he was positioned at the bottom of the excavation site when a wall of the excavation caved in on him, causing his death. The wall had not been shored or sloped as required under OSHA regulations.

Helen Ruth Pope, wife of the deceased, sued the City and the Board, ¹ alleging that they had negligently caused the death of her husband. The City and the Board moved for a summary judgment, basing their motion on "the pleadings, the deposition of [the superintendent of the Board], Exhibit A (that portion of the construction contract [between the City and Burgin] relative to safety on the job site [at the treatment plant], and Exhibit B (being notes from the pre-construction conference regarding the construction contract on this job site)." The trial court entered a summary judgment for the City and the Board, concluding that there was no evidence that the City and the Board maintained any control or supervision regarding the manner of the contractor's (Burgin's) work or that they participated in any decisions regarding this work; that there was no evidence to establish a duty on the part of the City and the Board; and that "the affidavit of [Pope's expert was] insufficient to defeat the motion for summary judgment in that the affidavit was not based on personal knowledge, but rather on speculative and conclusory statements." The trial court made the judgment final pursuant to Rule 54(b), Ala.R.Civ.P.

Pope filed a motion to alter, amend, or vacate the summary judgment in which she acknowledged that the trial court found her expert witness's affidavit to be insufficient to defeat the motion. She attached to her motion "a new and more thorough affidavit of [her] proffered expert ... [in which he] explains everything that he has reviewed in this case and exactly what his opinions are concerning the excavation work performed at the time of" the death of her husband in order to establish that the City and the Board were not entitled to a judgment as a matter of law. The trial court denied Pope's motion. Pope appeals. We affirm.

The dispositive issue is what duty the City and the Board, as premises owners, owed the deceased as an employee of Burgin, an independent contractor.

The general rule, as it relates to the duty that a premises owner owes to an employee of an independent contractor, was set forth in Bacon v. Dixie Bronze Co., 475 So.2d 1177 (Ala.1985), a case with facts similar to those of this case and in which this Court adopted the trial court's order as the opinion of the Court, a portion of which we find applicable to and dispositive of this case " 'The Court [in Chrysler Corp. v. Wells, 358 So.2d 426 (Ala.1978) ] defined the duty owed by the owner of premises to an independent contractor as follows:

" ' "The owner of premise is not responsible to an independent contractor for injuries from defects or dangers which the contractor knows of, or ought to know. But if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this he is liable for result of injury...."

" 'In Quillen v. Quillen, 388 So.2d 985 (Ala.1980), the Court quoted with approval its earlier opinion in Lamson [Lamson] & Sessions Bolt Company v. McCarty, 234 Ala. 60, 173 So. 388 (1937), as follows:

" ' "The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so...