Warren v. Hudson Pulp & Paper Corp.

• Decision Date: 29 March 1973
• Docket Number: 72-1848.,259,No. 258,Dockets 72-1847,258
• Citation: 477 F.2d 229
• Parties: Elton WARREN, Plaintiff-Appellee, v. HUDSON PULP & PAPER CORP., Defendant-Appellant and Third Party Plaintiff-Appellee, v. TREADWELL CORP., Third Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

477 F.2d 229 (1973)

Elton WARREN, Plaintiff-Appellee, v. HUDSON PULP & PAPER CORP., Defendant-Appellant and Third Party Plaintiff-Appellee, v. TREADWELL CORP., Third Party Defendant-Appellant.

Nos. 258, 259, Dockets 72-1847, 72-1848.

United States Court of Appeals, Second Circuit.

Argued January 4, 1973.

Decided March 29, 1973.

COPYRIGHT MATERIAL OMITTED

Paul C. Matthews, New York City, for plaintiff-appellee.

William F. McNulty, New York City (Hanner, Fitzmaurice & Onorato, New York City, on the brief), for defendant-appellant and third party plaintiff-appellee.

Joseph D. Ahearn, New York City (Daniel J. Coughlin, New York City, on the brief), for third party defendant-appellant.

Before FRIENDLY, Chief Judge, KAUFMAN, Circuit Judge, and HOLDEN,^* District Judge.

HOLDEN, District Judge:

In June, 1965, the plaintiff, a rigger by trade, was employed by Treadwell Corporation, a New York construction corporation, as a boilermaker foreman. He was hired to supervise the construction of two boilers on a project undertaken by Treadwell, in the performance of a construction contract with the defendant Hudson Pulp & Paper Corporation to expand the latter's industrial plant in Palatka, Florida. This diversity suit was instituted by the plaintiff to recover for permanent damage to his respiratory system caused by the inhalation of noxious and toxic fumes produced in Hudson's industrial operation adjacent to the construction site.¹

The jury awarded the plaintiff damages for Hudson's negligence in the amount of $150,000. Judge MacMahon ordered a judgment to be entered in the same amount against Treadwell on the strength of an indemnity provision in its construction contract with Hudson. Hudson appeals from the judgment in the main action, contending that it was not negligent under Florida law. Treadwell appeals from that judgment and from the judgment entered against it in the indemnity action. We affirm both judgments.

Hudson owns and operates a kraft paper mill in Palatka, Florida, which produces 950 tons per day of converted products, bag and tissue. In April, 1965, Treadwell contracted with Hudson to complete the expansion of Hudson's plant. The work covered by the contract between Treadwell and Hudson was performed under the general supervision of J. E. Sirrine Company, Hudson's architect and supervising engineer for the project. This consultant maintained a staff of approximately twelve men on the site to coordinate the work of the various trades and see that contract specifications were fulfilled.

Under the contract Treadwell agreed to supply the materials and labor necessary to the expansion of the plant. Treadwell also agreed to extend the smokestacks of the No. 4 Power Boiler and the No. 2 Bark Boiler at the existing plant an additional 50 feet each. The contract further provided that Treadwell would assume the liability for any damages or injuries which occurred during the project as a result of Hudson's negligence. The contract provided, however, that the work was to be performed in accordance with a construction schedule prepared for Hudson by the supervising engineer, J. E. Sirrine Company.

Elton Warren began work on the Palatka project on June 1, 1965. The work which Warren was assigned was the construction of two new boilers. To accomplish this, Warren and the other workers worked from an outdoor steel framework of the building under construction at heights of 90 to 100 feet. This job site was located some 75 feet from the smokestacks of the No. 2 Bark Boiler and the No. 4 Power Boiler of Hudson's existing plant and not connected or related to the new boilers under construction. The No. 2 and No. 4 boilers continued in operation during the plant expansion until early September.

The No. 2 and No. 4 boilers burned a low grade fuel oil that produced smoke containing sulphur dioxide and carbon dioxide gases. Sulphur dioxide is a toxic gas capable of causing serious lung damage to one who inhales it. The smoke emitted from the stacks enveloped the structural framework where Warren and the other men were working when the wind was blowing in that direction, making it hazardous for the construction workers to remain at work. The smoke made it difficult for the workmen to breathe and caused nausea, sore throats, running noses and watery eyes. At times the men came down to the ground to escape the fumes. These working conditions were not improved nor corrected until Hudson shut down the boilers during the Labor Day weekend. At that time the stacks were lengthened to allow the smoke to pass over the heads of the Treadwell workers. The elevation of the stacks greatly improved the working conditions and substantially eliminated the smoke hazard.

From the time he began work at Palatka, on June 1, until Labor Day, the plaintiff suffered from the fumes. He made frequent complaints to the Treadwell general foreman. Each time he was told that the situation would be corrected within a few days. Treadwell, in turn, had been informed in June by the supervising engineer, J. E. Sirrine Company, that a stack extension would be fabricated to enable Treadwell to lengthen the offending stacks.

After he stopped work at Palatka, the plaintiff discovered that he had developed a permanent and progressively worsening pulmonary condition which prevented oxygen from diffusing properly into his bloodstream. The cause and extent of the plaintiff's injury are not questioned in this appeal; only liability is challenged.

The Motion to Dismiss

At the conclusion of the plaintiff's evidence, the defendant Hudson moved to dismiss the complaint on the ground that ". . . the plaintiff failed to make out a prima facie case under the law of Florida." No motion for a directed verdict, as such, was offered by either Hudson or Treadwell. Both appellants, however, join in the claim of error and apparently rely on the motion to dismiss as a motion for a directed verdict. In this context a motion to dismiss in a jury trial may be allowed to do service for a motion for directed verdict under Rule 50(a). C. Wright and A. Miller, Federal Practice and Procedure § 2371. We so regard it for the purposes of this review.

In Florida a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care. Hall v. Holland, 47 So.2d 889, 891 (Fla.1950); Restatement, Torts 2d § 343. The employee of an independent contractor has the status of a business visitor. Hall v. Holland, supra; Hickory House v. Brown, 77 So.2d 249, 252 (Fla.1955).

This was more recently stated in Hamilton v. Armstrong Co., 371 F.2d 139, 140 (5th Cir. 1967).

It is settled law in Florida that an owner is under a duty to use reasonable care in maintaining his premises in a reasonably safe condition and to give timely notice or warning of latent and concealed perils known to the owner, or which by the exercise of due care should have been known to him, and which are not known to an invitee or which by the exercise of due care could not have been known to him. This duty is the same whether the invitee be there as the employee of the owner or as the employee of an independent contractor.

The evidence presented at the trial established that the responsible officers and representatives of Hudson at the construction site were aware of the presence of sulphur dioxide in smoke produced by the combustion in Boilers No. 2 and No. 4. They knew or should have known the stacks were giving off poisonous fumes and the dangerous consequences which could result from continuing exposure to its toxicity.

Hudson's supervising engineer knew of the drift of the smoke which frequently enveloped the open structural frame where the plaintiff was working. Yet Hudson made no effort to correct the problem and gave no warning to Treadwell's employees of the danger from the inhalation of the fumes from its stacks.

The presence of foreseeable harm, coupled with the defendant Hudson's ability to arrange Treadwell's work schedule and its undisputed control of the offending stacks provide all of the necessary ingredients of a prima facie case of negligence under the law of Florida. The defendant's motion to dismiss the action was properly denied.

Instructions to the Jury

In submitting the issue of Hudson's negligence, Judge MacMahon instructed the jury:

In determining whether the defendant exercised due care under the circumstances, you may consider what knowledge the defendant had or that it should have had as to the dangerous qualities of the flue gas emitting from its stacks.

In this regard, a person who causes gases and fumes to be discharged into the atmosphere, an industrial company like this, has a duty to find out what is in those gases and whether they are noxious before it emits them into the atmosphere.

There were no objections by either defendant to these instructions. Both defendants, however, objected to the instructions which immediately followed.

The possessor of land, in these circumstances, has an additional duty to the plaintiff, a business visitor, to exercise reasonable care to discover the negligent acts or the likelihood of negligent acts by third persons like Treadwell, who were invited to come onto the property to perform services in connection with the business.

One aspect of this duty is that the possessor of the land, Hudson here, must exercise a reasonable, careful supervision of the appliances and the methods used by Treadwell, whom it employed or permitted to carry out on the land an activity directly or indirectly connected with the business use of the premises.

Hudson and Treadwell join to challenge this portion of the charge. Without reference to any Florida decisions, the appellants seem to rely on the law...