Secrist v. Mark IV Constructors, Inc.

• Decision Date: 07 June 1985
• Citation: 472 So.2d 1015
• Parties: Michael Jerome SECRIST v. MARK IV CONSTRUCTORS, INC. 83-1319.
• Court: Alabama Supreme Court

Page 1015

472 So.2d 1015

Michael Jerome SECRIST v. MARK IV CONSTRUCTORS, INC.

83-1319.

Supreme Court of Alabama.

June 7, 1985.

Joseph M. Brown, Jr. and Richard E. Browning of Cunningham, Bounds, Yance, Crowder, & Brown, Mobile, for appellant.

Victor T. Hudson and Stephen E. Clements of Reams, Vollmer, Philips, Killion, Brook & Schell, Mobile, for appellee.

BEATTY, Justice.

Appeal by plaintiff, Michael Jerome Secrist, from summary judgment for defendant, Mark IV Constructors, Inc. (Mark IV). We affirm.

Defendant Mark IV was the general contractor constructing a building on the campus of Jefferson Davis Junior College in Brewton. Progressive Roofing and Fine Sheet Metal Company, Inc., (Progressive) was the subcontractor engaged by Mark IV to perform certain roofing and sheet metal work on the building. Plaintiff Secrist was an employee of Progressive working on the job at Jefferson Davis Junior College. While in the process of moving toeboards once used by Progressive employees to aid in the application of shingles to the building's roof, Secrist fell and was injured. Plaintiff Secrist filed a complaint against Mark IV and also against several co-employees. Following further pleading and discovery, Mark IV moved for summary judgment, based upon "the pleadings, the depositions on file, the discovery requests and the responses thereto," and a brief in support of the motion. In due course, the trial court, in an order made final pursuant to Rule 54(b), A.R.Civ.P., granted summary judgment in favor of Mark IV. Plaintiff appeals from that summary judgment.

The familiar principle applicable to summary judgment is stated in Bryant v. Morley, 406 So.2d 394, 395 (Ala.1981):

"Under Rule 56, ARCP, summary judgment is appropriate only when the moving party has demonstrated that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Whatley v. Cardinal Pest Control, Ala., 388 So.2d 529 (1980)...."

Or, as stated in Campbell v. Southern Roof Deck Applicators, Inc., 406 So.2d 910, 913 (Ala.1981):

"The movant for summary judgment has the burden of showing the absence of any genuine issue of material fact, and the record must be viewed in a light most favorable to the party opposing the motion. Rule 56, ARCP; Papastefan v. B & L Construction Co. of Mobile, Ala., 356 So.2d 158 (1978). In other words, on motion for summary judgment the movant must demonstrate that if the case went to trial there would be no competent evidence to support a judgment in favor of the other side and, therefore that a trial is useless. Logan v. Beuttner, Ala., 342 So.2d 352 (1977), citing Wright & Miller, Federal Practice and Procedure, Civil § 2727...."

According to plaintiff's brief:

"There is no real dispute among the parties as to the facts which gave rise to the plaintiff's injuries in this case. He was working as a roofer, and was in the process of roofing a new building being constructed on the Jefferson Davis State Junior College campus. The slope of the roof was an exact forty-five degree angle--that is, for every one foot of horizontal distance in the roof there was a corollary one foot in rise. At the time of his fall, Mr. Secrist was standing on a toeboard constructed of 2 X 4's, and suspended from the peak of the roof by copper straps. Because of the fact that the roof had already been laid, it was necessary to use these boards to prevent any nails or similar materials from puncturing the existing roof and resulting in any leaks. Having completed the roofing process itself, these toeboards were being removed from the roof, starting at the top and working towards the bottom edge of the roof. While performing these duties, the toeboard on which Mr. Secrist was standing twisted, resulting in his losing his balance and falling from the roof to the ground. Furthermore, there is no dispute among the parties that no safety belts were being worn by the roofers, nor had they been provided for their use."

Plaintiff contends that the general contractor owed a duty to the employees of the subcontractor to exercise reasonable care to keep the premises of the job site in a reasonably safe condition, and further contends that summary judgment was inappropriate because the facts establish that the general contractor failed to furnish safety belts to the subcontractor's roofer, Secrist, as required by the condition of the roof in question. Plaintiff cites us to the cases of Southern Minerals Co. v. Barrett, 281 Ala. 76, 199 So.2d 87 (1967), and Knight v. Burns, Kirkley & Williams Construction Co., 331 So.2d 651 (Ala.1976), as authority for this position.

In the Southern Minerals case, an employee of a subcontractor was engaged as a brickmason's helper in constructing a manhole in a sewer line which had been excavated by a general contractor. The walls of the excavation caved in, injuring the subcontractor's employee, who subsequently brought an action against the general contractor for negligently failing to provide a reasonably safe place for the employee to work. That decision explained the legal relationship of the general contractor to the employee of a subcontractor and the duty owed by the former to the latter, at 281 Ala. 80-81, 199 So.2d 90-91:

"The defendant, as a general contractor, was in control of and occupied the premises, so far as concerns any question here presented, the same as if it were the owner. There is no dispute concerning plaintiff's status as an invitee of defendant. The duty owed by defendant, as invitor, to plaintiff, as its invitee, has been stated in a number of this court's decisions. See: Kittrell v. Alabama Power Co., 258 Ala. 381, 383, 63 So.2d 363 [1953]; ... From [Kittrell ] (258 Ala. at 383, 63 So.2d at 363), is the following:

" 'The duty of defendant [invitor] was to use ordinary or reasonable care to keep its premises in a reasonably safe condition. It was not an insurer of the safety of its guests or invitees. The principle of res ipsa loquitur does not apply. [Citations omitted.]

" 'Defendant is required to exercise reasonable care before its invitee comes to his premises to have the premises reasonably free from danger to the invitee when he arrives and to so keep the premises while the invitee is on the premises where he may be expected or was invited to go. [Citation omitted.]'

"The following is from Lamson & Sessions Bolt Co. v. McCarty, (234 Ala. at 63, 173 So. at 391 [1937] ):

" 'This court is firmly committed to the proposition that the occupant of premises is bound to use reasonable care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, expressed or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his premises are in [any] respect dangerous, he must give such visitors sufficient warning of the danger to enable them, by the use of ordinary care, to avoid it. [Citation omitted.]

" 'This rule, as was held in the case of Farmers' & Merchants' Warehouse Co. v. Perry, [218 Ala. 223, 118 So. 406 (1928) ], also includes (a) the duty to warn an invitee of danger, of which he knows, or ought to know, and of which the invitee is ignorant; and (b) the duty to use reasonable care to have the premises to which he is invited in a reasonably safe condition for such contemplated uses, and within the contemplated invitation.'

"The principle is thus stated in the [Prudential Ins. Co. of America v.] Zeidler case, 233 Ala. at 331, 171 So. at 636 [1936]:

" 'The general duty imposed by the law on the owner of premises is to be reasonably sure that he is not inviting another into danger, and to exercise ordinary care and prudence to render and keep his premises in a reasonably safe condition for invitees. * * * ' "

In support of his contention that the roof was a dangerous condition requiring the use of a safety belt, plaintiff quotes from the deposition of Harvey Hill, a former employee of Progressive Roofing on the Jefferson Davis Junior College job:

"Q. What type of roof was this that you all were working on? Did it have some sort of nomenclature or descriptive term about it that would tell us what type roof we are talking about?

"A. Well ...

"Q. I am talking about the slant and pitch of the roof, now?

"A. Oh, yeah. It looked to me like a twelve on twelve, you know, like that.

"Q. Twelve on twelve, as I understand it from the roofing industry and the roofing people and from Mr. Satterwhite whom we have deposed earlier, is basically a forty-five degree pitch roof?

"A. Right. Easily that.

"Q. Now, let me ask you this: In the roofing industry, is that a steep roof or a shallow pitch roof or what?

"A. It's steep, it's steep. It requires safety belts.

"Q. Now, you say it requires safety belts. What do you mean by that?

"A. Well, I mean it would take a dumb person to get out there without any kind of safety equipment on like that.

"Q. Even with toeboards up there?

"A. Oh, yeah. The way we had them set up, sure. Maybe if we had bigger boards or something, it might not have been, but, yeah, I would say you would need a safety belt at all times. There's no telling, you can't depend on a board.

"Q. Are there shallower pitched roofs, Mr. Hill, that you wouldn't use a safety belt on or that it wouldn't be required on?

"A. Right. Four on twelve to a five on twelve pitch, you wouldn't need anything. Anything like a six on up, everything would have to be anchored down to keep it from sliding off.

"...

"Q. It's been previously testified to in this case that the only kind of safety devices needed on a roof of this nature, a forty-five degree pitch roof, would be the presence of the toeboards, themselves, and the scaffolding which would be erected around the edges. Based on your experience in the roofing industry and the number of years you have had there with you and your father before you being involved in the roofing industry, would you...