Welker v. Kennecott Copper Co., CA-CIV

CourtCourt of Appeals of Arizona
Citation1 Ariz.App. 395,403 P.2d 330
Docket NumberCA-CIV
PartiesMelvin J. WELKER, Administrator of the Estate of Holly M. Welker, Deceased, Appellant, v. KENNECOTT COPPER COMPANY, a corporation, Appellee. * 221.
Decision Date15 June 1965

Rees, Estes & Browning, Tucson, Paul G. Rees, Jr., Tucson, of counsel, for appellant.

Fennemore, Craig, Allen & McClennen, Phoenix, Calvin H. Udall, Phoenix, of counsel, for appellee.

MOLLOY, Judge.

This is an appeal from a judgment rendered in favor of the defendant Kennecott Copper Company and against the plaintiff, administrator of the estate of a deceased workman who was killed by a dirt slide into an excavation in which such workman was employed upon property owned by the defendant. The case was submitted by the trial court to a jury, and the jury being unable to agree, a mistrial was declared. Subsequently, the court granted a motion of the defendant for judgment on the grounds that there was insufficient evidence to go to the jury on the question of the liability of the defendant.

Both parties to this appeal agree that the outcome thereof should be determined by an evaluation of the evidence presented in the five day trial. The facts will be stated either as they were undisputed or as viewed most favorably towards the plaintiff's contentions, as required by the procedural posture of this appeal.

The defendant, Kennecott, is the owner of substantial mining properties in the vicinity of Ray, Arizona. In 1957, it determined to make substantial additions to its crushing and milling facilities so as to add approximately 50 per cent to its capacity, by a total expenditure of between fifteen and sixteen million dollars. The engineering department of Kennecott prepared specification criteria as to the type of plant desired and the location thereof. These were put out to bid, with the successful bidder required to submit detailed plans and specifications, subject to the approval of Kennecott. The contract was a cost plus a fixed fee contract, and The Stearns-Roger Manufacturing Company was the low bidder.

Amongst the construction to be performed by Stearns-Roger was a crushing plant, the main building of which was approximately 200 feet by 75 feet. Kennecott's design criteria indicated that this plant was to be located on the northwest bank of an arroyo. The general area of construction was covered by tailings from milling operations theretofore conducted by Kennecott to a depth of between three to five feet. Below this the soil was a loose sand, rock and gravel, referred to as 'slope wash' in the testimony, to a depth of between ten and fifteen feet. Below this was 'Gila conglomerate,' a tightly packed mixture of rock, clay and gravel comparatively well solidified.

In order to give the new building with its machinery a satisfactory foundation, it was necessary to excavate down to the Gila conglomerate and to dig into this conglomerate for the footings of the building. Welker, the plaintiff's decedent, was one of Stearns-Roger's employees for this work.

The excavation for this building commenced on or about January 23, 1959. By February 2, the area had been excavated down to a 'working level,' which was approximately at the top of the Gila conglomerate formation. In the area where Welker met his death, the excavation as to this working level was approximately ten feet below natural grade. Along the side of the excavation the tailings and the slope wash formed an almost vertical bank. Approximately a day and a half before the accident in question three 'footers' were dug into the Gila conglomerate in close proximity to this bank. Each of these 'footers' was approximately 20 feet long, 6 to 8 foot wide, and 10 foot deep. Welker was 'cleaning out' one of these footers at the time of his death.

The sides of the footers were almost vertical and one end of the footer in which Welker was working coincided with the bank formed by the slope wash and tailings, so that there was a total bank, almost vertical, of approximately 20 feet high next to which Welker was working. There were five men in the particular footer at the time of a bank collapse immediately above the footer. There was a Stearns-Roger's air compressor operating on the top of the bank at the time, supplying compressed air to jackhammers operating in the footer.

The piece of embankment which fell into the footer contained approximately 486 cubic feet of material. In vertical depth, the sluff-off was 7 to 8 feet in height, the lower portion thereof being in the slope wash material. Welker was the closest to the bank and was covered with tailings, sand, rock and gravel and, before he could be extricated, suffocated.

Plaintiff's complaint, upon which issue was joined, alleged that Kennecott was negligent and therefore liable to the plaintiff, in the following respects:

(1) Permitting power tools and equipment to be operated near the top of the embankment;

(2) Failure to adopt and enforce standard safety precautions;

(3) Failure to exercise reasonable care to supply plans and specifications reasonably sufficient to maintain the land in a safe condition;

(4) Undertaking as an owner the construction through an independent contractor of work which the defendant should have recognized as necessarily creating an unreasonable risk of bodily harm to the defendant unless specific precautions were taken to protect workmen such as the decedent and negligently failing to exercise reasonable care to cause such precautions to be taken;

(5) Failing to supervise and control in a prudent manner that part of the operations over which it retained control, and

(6) Failure to warn the defendant of the danger resulting in his death.

Among the controls retained by Kennecott under the subject contract were:

(1) Kennecott's prior approval was necessary for the employment of subcontractors. [General Condition #6]

(2) Kennecott could require the removal of any employees on the job whenever deemed necessary in the interests of Kennecott. [General Condition #6]

(3) Kennecott's prior approval was necessary for the purchase of all materials, supplies, appliances, tools and plant equipment to be provided. [General Condition #7]

(4) Kennecott could make changes, alterations, additions or deletions to the plans and specifications at any time so long as the same were consistent with the original objective of the project. [General Condition #8]

(5) Kennecott could have extra work performed not included in the scope of the work, paying for same at actual cost plus six and one-half per cent. [General Condition #9]

(6) Kennecott had the right to terminate the contract at any time, in which event there would be an 'equitable settlement' on the contractor's fixed fee. [General Condition #12]

(7) In order to be included in the costs for which the contractor was to be reimbursed, the following items had to have 'prior approval' of or be authorized by Kennecott [Special Condition #2]:

(a) The purchase or rental of all equipment, materials and supplies and the manufacturer, quality and vendor thereof. [Special Condition 2a, c, d, e]

(b) Cost of necessary maintenance and repairs of construction equipment, tools, et cetera. [Special Condition 2f]

(c) The salaries or wages of certain of contractor's employees at its Denver office, including the Assistant to the Project Manager, process engineers, the Project Engineer, material engineers, and specification engineers, 'each employee and his salary or wage to be subject to' Kennecott's 'prior approval.' [Special Condition 2h]

(d) The salaries of certain key employees and in certain categories at the construction site, 'each employee and his salary or wage to be subject to' Kennecott's 'prior approval.' These included the General Construction Superintendent, the Assistant General Construction Superintendent, the Resident Engineer, the Area Superintendent, Craft Superintendents, the Field Engineer, the Safety Engineer, and various other key personnel. [Special Condition 2k]

(e) Salaries, fees, travel and living expenses of outside consultants, engineers and technicians. [Special Condition 2v]

(f) Cost of programming and computer service. [Special Condition 2w]

(8) Kennecott had the right to suspend progress payments to the contractor towards the fixed fee when in its opinion progress did not justify the payment rate specified in the contract. [Special Condition #5]

(9) Before any specifications and drawings for work to be done and orders for material could be released to the field for use the same must be submitted to Kennecott 'for approval.'

(10) All bids received by the contractor for the supplying of materials were to be submitted to Kennecott, who would select the bids upon which the contractor would be authorized to purchase. [Special Condition #8]

(11) Toilet facilities were to be built by the contractor, to be located by direction of Kennecott. [Special Condition #8]

(12) The equipment when completed was to be serviced, operated, tested and adjusted by the contractor so as to indicate satisfactory performance to Kennecott. [Special Condition #14]

The contract required Stearns-Roger to provide all detailed engineering design complete with working drawings and material specifications and to do all things necessary to construct and test the desired facilities. The contractor provided under its contract in excess of 900 detailed drawings. Stearns-Roger guaranteed all materials and workmanship for a period of one year after acceptance. Under the contract, Kennecott was required to have a representative on the project at all reasonable times to act for it in connection with the contract.

Prior to letting the contract in question, Kennecott had a 'soil investigation' made by test drillings in the areas or proposed construction. A written report of these tests was submitted to Kennecott, which in turn provided the same to Stearns-Roger. Prior to commencement of construction,...

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