Ralston Purina Co. v. Farley, 88-SC-000065-DG

• Citation: 759 S.W.2d 588
• Decision Date: 27 October 1988
• Docket Number: No. 88-SC-000065-DG,88-SC-000065-DG
• Parties: RALSTON PURINA COMPANY, Movant, v. Jeffrey D. FARLEY; R & W Construction Company, Inc.; and Condo Manufacturing Company, Respondents.
• Court: United States State Supreme Court — District of Kentucky

Page 588

759 S.W.2d 588

RALSTON PURINA COMPANY, Movant, v. Jeffrey D. FARLEY; R & W Construction Company, Inc.; and Condo Manufacturing Company, Respondents.

No. 88-SC-000065-DG.

Supreme Court of Kentucky.

Oct. 27, 1988.

Robert M. Connolly, David Houston Ward, Stites & Harbison, Louisville, for movant.

Cecil Davenport, C.A. Dudley Shanks, Fred Stair, Victor W. Ewen, Louisville, for respondents.

VANCE, Justice.

The question is whether a warning of a dangerous condition in the premises given by the occupier of the premises to an independent contractor absolves the occupier of the premises from liability to an employee of a subcontractor who sustained an injury by reason of that condition of the premises. We hold that it does. The appellant, Ralston Purina Company, the owner and occupier of a building, employed R & W Construction Company, Inc., an independent contractor, to construct an addition to the building. R & W Construction Company subcontracted with Condo Manufacturing Company to perform a portion of the work, including the installation of siding and ventilation louvers.

Appellee, Jeffrey D. Farley, was an employee of the subcontractor. Although the installation of the siding and louvers was generally performed by the use of scaffolding erected alongside the building, Condo employees decided to lift one of the louvers by standing on the roof.

Instead of proceeding directly onto the roof of the new addition in immediate proximity to the point of the louver installation, they elected to enter upon and proceed across the roof of the old building to reach the place where the louver was to be lifted. In doing so, they entered upon a portion of the old building which had a concrete roof, and proceeded to cross a guard rail onto another portion of the roof of the old building which had a transite composition roof. This transite material was 5/16 of an inch thick, supported by girders at intervals, but without any additional support between the girders. The thickness of the transite material was observable from the edges of the roof.

The transite roof was not sufficiently strong to support the weight of appellee Farley, and he was injured when he fell through a section of the roof between the girders.

It is not disputed that prior to the commencement of the work Ralston Purina Company warned its independent contractor, R & W Construction Company, that the transite roof was a weak system and that workers should use plywood and safety harnesses when attempting to cross it.

Appellee Farley contends that he did not know, and was not warned, that the transite was unsafe to walk upon.

The parties to this appeal are, seemingly, in agreement that the owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. But if the defect or danger is hidden or 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. See Owens v. Clary, 256 Ky. 44, 75 S.W.2d 536 (1934).

The trial judge directed a verdict for Ralston Purina on the ground that the roof through which Farley fell did not constitute a hidden defect, and therefore there was no duty to warn of the condition.

The Court of Appeals reversed, holding that the case should not have been taken from the jury. We reverse the decision of the Court of Appeals and direct that the judgment of the trial court be reinstated.

Ralston Purina's defense at trial and in the Court of Appeals was two-fold: First, that it owed no duty to warn because the roof did not constitute a hidden defect and, secondly, if any duty were owed it was discharged by timely warning to R & W Construction Company, the independent contractor. The trial court dismissed the complaint on the basis of the first contention and did not reach the second. The Court of Appeals reversed the judgment on the basis that the ruling of the trial court that there was no duty to warn was erroneous and further held that the question of the adequacy of the warning was a question for the jury.

We do not need to reach the issue of whether there was a duty to warn under the facts of this case because, assuming it had such a duty, it is abundantly clear that Ralston Purina discharged that duty.

It is not disputed that Ralston Purina warned its independent contractor that the transite roof was weak and that plywood and safety harnesses should be used when working upon it. This constituted a specific warning of a condition which might pose danger and a specific warning as to the safety precautions necessary. It cannot be said that this was not an adequate warning of the danger.

The only remaining question is whether an adequate warning to an independent contractor by the owner discharges the owner's duty to an employee of the independent contractor or a subcontractor. Farley contends that he did not know of the danger and that Ralston Purina owed him a duty to warn him of the danger.

Farley relies upon Owens v. Clary, 75 S.W.2d at 537, in which we stated:

"The owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. 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 resultant injury. The same rule applies to the servants of the contractor, and to the subcontractor and his servants."

Farley interprets this to mean that when there is a duty to warn the contractor, the same rule applies as to the servants of the subcontractor, and to the subcontractor and his servants; therefore, a duty exists to warn each of them. Owens v. Clary involved an injury to an independent contractor, not to one of his employees or to the employee of a subcontractor. The language quoted is dictum as far as it related to the employees of independent contractors or subcontractors, and it is likewise susceptible to the interpretation that employees of a contractor or a subcontractor may rely upon the rule that the owner of the premises had a duty to warn the contractor of a hidden defect.

In any event, Owens v. Clary was decided in 1934. In 1970 we decided Hercules Powder Company v. Hicks, Ky. 453 S.W.2d 583 (1970) in which we held:

"The responsible and supervisory employees of Wabassco knew of the problem and the danger. We do not perceive that Herbert's duty to warn, as urged by appellees, could extend to a requirement that he see to it that each and every employee of Wabassco should have individual warning and instruction."

Id. at 590.

The rule seems well established in other jurisdictions that notice or warning to a contractor is also notice to the employees of the contractor.

In Schwarz v. General Electric Realty Corp., 163 Ohio St. 354, 126 N.E.2d 906 (1955), the court stated:

"Each employee of an independent contractor is under the immediate direction and supervision of his own employer, and for this reason courts take the position that, where the employer of the independent contractor is not in immediate control of the employment area and does not participate in the operation thereon, notice to the independent contractor of hazards within the employment area is notice to his employees, as such independent contractor has the duty to transmit such notice or warning to his individual employees. Under such rule, if notice of dangerous conditions is given to the independent contractor, the employer of the contractor has performed his duty so far as it applies to the employees of the contractor."

In Levesque v. Fraser Paper Limited, 159 Me. 131, 189 A.2d 375 (1963), the court confronted the duty of an owner to give warning of a defective roof to the employee of an independent contractor. It said:

"We declare, therefore, that in this case, assuming a latent dangerous defect in the roof of the loading shed, of which defect the defendant had actual or constructive knowledge, and out of which defect and knowledge arose a duty on the part of the defendant to notify plaintiff or Contractor, such duty could be performed by giving notice of the danger actually or constructively known by it to be latent in the roof of the loading shed to the Contractor, or someone in charge of the operation on Contractor's behalf."

In Hunt v. Laclede Gas Co., 406 S.W.2d 33 (Mo.1966), the court held that notice to an independent contractor of a dangerous condition is notice to each of his employees, and if notice is given to the independent contractor of the dangerous condition, the employer has performed its duty. It cited the rule that warning to the superiors in employment of a person is warning to that person, the...