Welch v. Heat Research Corp.
| Decision Date | 07 May 1981 |
| Docket Number | No. 80-1665,80-1665 |
| Citation | 644 F.2d 487 |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | John M. WELCH, Plaintiff-Appellant, The Travelers Insurance Company, Intervenor, v. HEAT RESEARCH CORPORATION, Defendant-Appellee. Summary Calendar. . Unit A |
Ammerman & Ammerman, Jim Ammerman, Don Stokes, Marshall, Tex., for plaintiff-appellant.
Blake Erskine, Erskine, Dunn & McMahon, Longview, Tex., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before BROWN, POLITZ and TATE, Circuit Judges.
Plaintiff, John M. Welch, appeals District Court's judgment entered on order granting defendant's, Heat Research Corp., motion for directed verdict in diversity action for negligence. Welch complains District Court erred in (i) determining Heat Research owed no duty to him which was breached, and (ii) directing the verdict in favor of Heat Research. We affirm.
Welch was injured while employed as assistant leadman 1 for Fabsteel, Corporation of Waskom, Texas. Heat Research had secured Fabsteel as an independent contractor 2 to fabricate radiant floor panels for heaters to be used in the production of ammonia. The fabrication process required Fabsteel to weld three rectangular pieces of steel weighing between 1500 and 2000 pounds each to a larger steel frame. Heat Research furnished plans and specifications to Fabsteel setting forth specifically where and how many welds were to be made as well as the number and size of bolts to be used in order to connect the three panels. All fabrication work was performed by Fabsteel at its facility in Waskom. Welch was crushed beneath the center steel plate after it fell from the larger rectangular panel as he was lifting it by means of a power hoist in order to complete his welding process.
Seeking to recover damages for his severe injuries, loss of earning capacity, and medical expenses, Welch brought this action alleging Heat Research was guilty of negligence which proximately caused his injuries by furnishing Fabsteel with a defective set of plans and in failing to warn him or Fabsteel of the hazards involved in fabricating the floor panels. After Welch rested at trial, however, District Court granted Heat Research's motion for directed verdict, concluding as a matter of law Heat Research owed no duty of care to Welch for which it could be held legally accountable as the evidence adduced at trial, upon which reasonable minds could not have differed, showed the fabrication process was exclusively under the control of Fabsteel.
In our review of District Court's direction of the verdict, we apply the same standards to make our determination. Boeing Co. v. Shipman, 411 F.2d 365, 374-76 (5th Cir. 1969) (en banc). See also Bridges v. Groendyke Transport, Inc., 553 F.2d 877, 878 (5th Cir. 1977). That is, we must ascertain whether District Court properly substituted its judgment for the jury. Downs v. J. M. Haber Corp., 580 F.2d 794, 798 (5th Cir. 1978). Although it is well settled negligence is a question of fact to be determined by a jury, id. at 797, whether a defendant owes a plaintiff a legal duty is a question of law while resolution of a defendant's possible breach of a duty is a question of fact. Chavez v. Noble Drilling Corp., 567 F.2d 287, 289 (5th Cir. 1978).
District Court's direction of the verdict in this case required it to determine whether a legal duty was owed by Heat Research to Welch and if so whether it was breached. Welch challenges the propriety of District Court's conclusion in light of Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978), as the Texas Supreme Court there undertook to deal with or deal out the "... complex and confusing no-duty rule," id. at 516, a "... doctrine (which) is so elusive that precedent is non-predictive and unhelpful," id. at 518, and a "... doctrine (which) has been generally condemned." Id. Consequently, he argues "(t)he test of duty turns upon knowledge that the occurrence causing the injury will happen or could happen based upon the ordinarily prudent person standard or actual knowledge itself."
We find, however, a defendant generally has no duty to warn of a danger in order to avoid imputation of negligence where no danger is reasonably to be anticipated. Watkins v. Beicker, 579 S.W.2d 519, 522 (Tex.Civ.App. 1979). Welch's contentions regarding abolition of the "no duty" concepts by Parker are of limited value in this case. Whatever might be its impact outside of premises cases, see, e. g., Clayton v. United States, 457 F.Supp. 173, 175 (N.D. Tex. 1978); New Terminal Warehouse Corp. v. Wilson, 589 S.W.2d 465, 469 (Tex.Civ.App. 1979), it deals with the slippery concept of no-duty in open and obvious situations obviously not...
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