Serna v. Statewide Contractors, Inc., No. 1

• Court: Court of Appeals of Arizona
• Writing for the Court: CAMERON
• Citation: 429 P.2d 504,6 Ariz.App. 12
• Parties: William Lee SERNA and Sharon Lorraine Serna, Minors, by and through their guardian an litem, Margaret Serna, and Margaret Serna, individually, and Catherine Lopez and Eleanor Lopez, minors, by and through their guardian ad litem, Charlotte Lopez, and Charlotte, Lopez, individually, Appellants, v. STATEWIDE CONTRACTORS, INC., a foreign corporation, Appellee. 416.
• Decision Date: 20 June 1967
• Docket Number: CA-CIV,No. 1

Page 504

429 P.2d 504 6 Ariz.App. 12 William Lee SERNA and Sharon Lorraine Serna, Minors, by and through their guardian an litem, Margaret Serna, and Margaret Serna, individually, and Catherine Lopez and Eleanor Lopez, minors, by and through their guardian ad litem, Charlotte Lopez, and Charlotte, Lopez, individually, Appellants,
v.
STATEWIDE CONTRACTORS, INC., a foreign corporation, Appellee. No. 1 CA-CIV 416. Court of Appeals of Arizona. June 20, 1967.
Rehearing Denied July 31, 1967.
Review Denied Oct. 13, 1967.

[6 Ariz.App. 13]

Page 505

John J. Dickinson and Charles M. Brewer, Phoenix, for appellants.

Lewis, Roca, Scoville, Beauchamp & Linton, by Terry D. Oehler and James Moeller, Phoenix, for appellee.

CAMERON, Chief Judge.

This is an appeal from the granting of a motion for summary judgment in favor of the defendant, Statewide Contractors, Inc. The plaintiffs are the widows and children of two unskilled laborers who were killed when a ditch they were digging caved in on them. The plaintiffs brought an action for wrongful death against the defendant employer, alleging that the deaths were the result of the employer's willful misconduct within the meaning of A.R.S. § 23--1022 and that plaintiffs were therefore exempted from the exclusive remedy provision of the Workmen's Compensation Act.

The trial judge granted the defendant's motion for summary judgment on the ground that A.R.S. § 23--1022 did not exempt the plaintiffs from the Workmen's Compensation Act. The question before this Court is whether the motion for summary judgment was property granted.

A.R.S. § 23--1022 states:

'A. The right to recover compensation pursuant to the provisions of this chapter for injuries sustained by an employee shall be the exclusive remedy against the employer, except as provided by §§ 23--906 and 23--964, and except where the injury is caused by the employer's wilful misconduct and the act causing the injury is the personal act of the employer himself, or if the employer is a partnership, on the part of one of the partners, or if a corporation, on the part of an elective officer thereof, and the act indicates a wilful disregard of life, limb or bodily safety of employees, in which event the injured employee may, at his option, either claim compensation or maintain an action at law for damages.

'B. The term 'wilful misconduct' as employed in this section shall be construed to mean an act done knowingly and purposely with the direct object of injuring another.'

In reviewing the granting of a summary judgment, the evidence and all reasoanble inferences which may be drawn from the evidence will be viewed in the light most favorable to the party against whom the judgment was rendered. Sax v. Kopelman, 96 Ariz. 394, 396 P.2d 17 (1964).

For the purpose of this opinion, we will set forth the facts substantially as they are stated in the Statement of Facts contained in the appellants' brief. The plaintiffs are the widows and children of two men killed when a 25-foot-deep ditch caved in burying them alive. Defendants in the trial court were the City of Tempe, for whom the ditch was being dug to lay a city sewer lien and Statewide Contractors, Inc., the employer of the two men and the contractor hired by the City of Tempe to lay the line. The City of Tempe is not a party to this appeal. Plaintiffs chose to pursue their common law remedies and have not nor are they presently receiving funds from the Arizona Industrial Commission under the Workmen's Compensation Act. A.R.S. § 23--901 et seq. The decedents had not, prior to the accident, rejected the terms of the act as required by A.R.S. § 23--906.

The ditch was 25 feet deep and the sides were not sufficiently sloped or shored to prevent the sandy sides from caving in. The sides of the ditch had already caved in once, burying one of the decedents up to his waist. The decedents were instructed that in case of a cave-in they were to try to crawl inside the sewer pipe and then wait until they were dug out. When the ditch caved in decedents did, in fact, run [6 Ariz.App. 14]

Page 506

for the pipe as instructed, but they did not reach it. There was no safety ladder near the men at the place they were digging.

For five months prior to the accident inspectors of the Arizona Industrial Commission Accident Prevention Department had constantly warned defendant Statewide of the very conditions which caused the death of the decedents and had made recommendations for correction of the defects. The defendant-employer was wanred that the sides of the ditch were not sloped properly, the side was sandy, more shoring was needed, and escape ladders should be placed every 25 feet. Thus, defendant Statewide was, in effect, warned that the ditch was a dangerous place in which to work.

The safety inspector stated in an affidavit:

'That on numerous occasions Statewide Contractors, Inc. was advised of unsafe conditions on the job in question, but that said Statewide Contractors, Inc. repeatedly ignored said...