S. Ala. Brick Co. v. Carwie

• Decision Date: 18 March 2016
• Docket Number: 1130345.
• Citation: 214 So.3d 1169
• Parties: SOUTH ALABAMA BRICK CO., INC., d/b/a Riley–Stuart Supply Co. v. J. Gregory CARWIE, as temporary conservator of Benito Perez, an incapacitated person.
• Court: Alabama Supreme Court

214 So.3d 1169

SOUTH ALABAMA BRICK CO., INC., d/b/a Riley–Stuart Supply Co.

v.J. Gregory CARWIE, as temporary conservator of Benito Perez, an incapacitated person.

1130345.

Supreme Court of Alabama.

March 18, 2016.

Rehearing Denied June 10, 2016.

William H. Brooks and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham; Bert P. Taylor of Taylor Ritter, P.C., Orange Beach; and Wes Pipes and William W. Watts III of Pipes, Hudson & Watts, L.L.P., Mobile, for appellant.

Desmond V. Tobias, Jason S. McCormick, and Bryan E. Comer of Tobias, McCormick & Comer, LLC, Mobile; and R. Bernard Harwood, Jr., of Rosen Harwood, Tuscaloosa, for appellee.

Thomas R. Boller, Mobile, for amicus curiae University of South Alabama Hospitals, in support of the appellee.

MURDOCK, Justice.

South Alabama Brick Co., Inc., d/b/a Riley–Stuart Supply Co. ("SAB"), appeals from the Mobile Circuit Court's judgment in the amount of approximately $12.6 million in favor of J. Gregory Carwie, as temporary conservator of Benito Perez, who suffered catastrophic injuries when he fell through a skylight in the roof of a warehouse owned and operated by SAB. We reverse.

I. Facts and Procedural History

SAB is a Dothan, Alabama, based supplier of building materials, including bricks and roofing materials, which has seven locations throughout Alabama and Florida. One of those locations is a warehouse in Mobile, Alabama ("the warehouse"). The roof of the warehouse includes a large flat area. Contiguous to the large flat area is a large pitched area. The pitched area of the roof contains 37 skylights that are raised above the contours of the roof itself. The flat area of the roof contains 12 skylights that are not raised above the contours of the roof. The surfaces of both the pitched and flat areas of the roof are corrugated.

In October 2010, SAB noticed that water was dripping into the warehouse from leaks somewhere in the roof. Ramsey Stuart, the general manager of SAB's Mobile location, contacted Cooner Roofing and Construction, Inc. ("Cooner Roofing"), regarding the need for repairs to the roof.

Bobby Cooner is the president and owner of Cooner Roofing (a business begun by his father). Stuart testified that, when SAB had experienced any "roof issues, leaks or whatever over the years" it would call Cooner Roofing. He testified that he would rely upon Cooner to determine what repairs might be necessary. According to Stuart, Cooner Roofing's services in repairing leaks had been acceptable, and, during Stuart's lengthy association with SAB, he had no recollection of anyone other than Cooner Roofing performing repair work on SAB's roof.¹

Cooner examined the warehouse roof and gave SAB two proposals for repairing it. For a price of approximately $10,000, which SAB accepted, Cooner proposed to repair the roof of the warehouse by putting a coating on some portions of the flat area of the roof, installing a Hydro

Stop brand waterproofing system in the middle seam and upper seam of the flat area of the roof, and repairing or replacing the covers for the 37 skylights on the pitched area of the roof.² The 12 skylights on the flat area of the roof were not included as part of the work Cooner proposed.

Stuart testified that he had worked at SAB, a business started by his father, for over 30 years and that the skylights had been part of the roof since before he began working at the facility. According to Stuart, neither he nor, to his knowledge, any SAB employee had ever been on the warehouse roof. The record contains no evidence indicating that any SAB employee had ever been on the roof.³

SAB was not aware exactly of where Cooner Roofing's work on the roof would be performed. Stuart did testify that Cooner had advised him that some of his "crew" would be working around some of the skylights. On cross-examination, Stuart testified that he knew that the skylights would not support the weight of a man and that if a person fell through a skylight he likely would suffer grievous injury or death.

At the time of the events in question, Cooner Roofing used subcontractors and/or temporary employees to perform its work. Cooner testified that approximately 90 percent of the company's work consists of residential roofing projects; he could not name any commercial projects the company had performed other than those it had performed for SAB.

Stuart testified that he could not recall any prior "incidents" involving the safety of Cooner Roofing's employees or subcontractors and that there had never been any indication that Cooner or Cooner Roofing did not have knowledge of whatever hazards there might be working on metal roofs. Further, Stuart testified that he had no knowledge regarding any fall-protection requirements for working on roofs and that he had left it up to Cooner Roofing to take whatever safety measures it deemed necessary to do its work from time to time on SAB's roof. There is no evidence indicating that SAB exercised, or reserved the right to exercise, any control over the manner in which Cooner Roofing performed its contractual obligations to SAB.

Cooner Roofing hired Rocael Perez and his "crew," including Benito Perez, to perform the work on the roof of the warehouse. According to Rocael Perez, the members of his crew were not his employees and they all shared equally the money Cooner Roofing paid for the roofing work.⁴

Cooner testified that he warned Rocael Perez and his crew that the skylights on the flat area could be dangerous. Specifically, Cooner testified that he went up on the flat roof with Stuart and Rocael Perez and that he pointed out each of the 12 skylights on the flat area of the roof to Rocael Perez. Cooner stated that he then told Rocael Perez to follow fall-protection regulations of the Occupational Safety and Health Administration ("OSHA") in dealing with the skylights, which he said dictate covering skylights with plywood and using harnesses with ropes while working on the roof. Cooner added, however, that he expected Rocael Perez to purchase his own safety supplies for the project, including the plywood, as well as workers' compensation insurance. Cooner testified that the estimate he provided to Stuart for the cost of the roofing project included the cost of any safety supplies that might be necessary.

Rocael Perez testified that before the roofing project for SAB, he had never worked around skylight panels similar to the ones installed in the flat area of the warehouse roof. He stated that before the accident he did not know whether those skylights could hold the weight of a person and he did not know that they could be dangerous. He testified that Cooner did not tell him that there were skylights on the flat area of the roof and thus did not relate that those skylights could be dangerous. He stated that Cooner Roofing did not provide the crew with any safety guidelines or supplies. Rocael Perez also testified that the skylights on the flat area of the roof were "fitted into the roof," not raised like ordinary skylights, and that they were "practically identical to the metal" portion of the roof. He conceded that the skylight panels in the flat area of the roof were a different color than the rest of the roof, but he stated that the skylights were old and that the color looked kind of like metal.⁵ He testified that, when you are on the roof in the sunlight, the whole roof looks black and the skylights look no different than the rest of the roof.

Another crew member, Byron Perez, testified that Cooner spent only eight minutes on the roof with the crew explaining the job to them. He stated that Cooner did not tell them about the skylights or warn them to be careful because the skylights could be dangerous. Byron gave testimony to the same effect as Rocael about the difficulty of distinguishing between the roof and the skylights. Carwie also presented expert testimony to the effect that the skylights and the danger they presented were not open and obvious.

On October 29, 2010, the second or third day the crew had been working on the warehouse roof, Benito Perez was working on the pitched area of the roof near the crease between the pitched area and the flat area of the roof. According to Byron Perez, Benito Perez stood up, took a step backward, and lost his balance. Benito Perez then proceeded to fall backward onto one of the skylights on the flat area of the roof. He fell through the skylight and hit the concrete floor of the warehouse at least 20 feet below the roof. The fall resulted in catastrophic injuries to Benito Perez.

Carwie, as temporary conservator of Benito Perez, sued Cooner Roofing. The complaint alleged negligence and wantonness; Carwie later added SAB as a defendant.

Following a bench trial, but before the trial court entered a judgment, both SAB and Cooner Roofing filed separate motions they styled as motions for a judgment as a matter of law. SAB also filed a "Supplemental Motion for a Judgment as a Matter of Law." Carwie agreed at the close of trial that he was not pursuing the wantonness claims against SAB and Cooner Roofing, and the trial court entered a judgment in favor of SAB and Cooner Roofing on the wantonness claims. The trial court thereafter entered what it entitled an "Order and Verdict." At the outset of that order, the trial court noted that SAB's and Cooner Roofing's respective motions purporting to request judgments as a matter of law in a bench trial were actually motions for a judgment on partial findings by the trial court pursuant to Rule 52(c), Ala. R. Civ. P.⁶ The trial court denied the motions.

As to SAB, the trial court noted in its order that SAB had argued that the only duty it owed Benito Perez was the duty a premises owner has to a business invitee. SAB argued that it was not liable to Benito Perez because, irrespective of whether the skylights and the danger presented thereby were open and obvious to Benito, Cooner Roofing, the entity that had employed Benito and that was responsible for stationing him...