Newman v. Turner Construction Company et al
Filing
65
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS AND DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT DKT. NOS. 36 , 38 , AND 40 . The case will proceed to trial as scheduled. Signed by District Judge Irene M. Keeley on 11/1/2016. (Copy counsel of record)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
FRANKLIN D. NEWMAN,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:15CV155
(Judge Keeley)
TURNER CONSTRUCTION COMPANY and
INDEPENDENCE EXCAVATING, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
Following a worksite accident, the plaintiff, Franklin D.
Newman (“Newman”), filed a complaint in the Circuit Court of
Harrison County, West Virginia, on September 8, 2014, against
Turner
Construction
Co.
(“Turner”),
Thrasher
Group,
Inc.
(“Thrasher”), and Independence Excavating, Inc. (“Independence”)
(Dkt. No. 1-3 at 2). Following the voluntary dismissal of defendant
Thrasher, Turner and Independence removed the case to this Court
(Dkt. No. 1). Now pending are motions for summary judgment filed by
Newman, Turner, and Independence that are fully briefed and ripe
for review (Dkt. Nos. 36; 38; 40). For the reasons that follow, the
Court DENIES the parties’ motions.
FACTUAL BACKGROUND
I.
The Subcontract Agreements and the Safety Plan
Turner was selected by the Federal Bureau of Investigation to
construct Phase II of the Biometric Technology Center (“BTC”) in
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
Harrison County, West Virginia (Dkt. No. 38-1 at 2). Independence
executed a subcontract agreement with Turner in December 2010 for
“Earthwork & Site Utilities” (Dkt. No. 38-2 at 7). Newman’s
employer, Big T Caulking & Services, LLC (“Big T”), executed a
subcontract with Turner in March 2011 to perform “Waterproofing and
Joint Sealants” work (Dkt. No. 38-3 at 5).
Both subcontracts are identical in significant respects, and
contain several provisions particularly relevant to safety and
liability:
The Subcontractor agrees that the prevention of accidents
to workmen and property engaged upon in the vicinity of
the Work is its responsibility. The Subcontractor agrees
to comply with all Federal, State, Municipal and local
laws, ordinances, rules, regulations, codes, standards,
orders, notices and requirements concerning safety as
shall be applicable to the Work, including, among others,
the Federal Occupational Safety and Health Act of 1970,
as amended, and all standards, rules, regulations and
orders which have been or shall be adopted or issued
thereunder, and with the safety standards established
during the progress of the Work by the Contractor. When
so ordered the Subcontractor shall stop any part of the
Work which the Contractor deems unsafe until corrective
measures satisfactory to the Contractor have been taken,
and the subcontractor agrees that it shall not have nor
make any claim for damages growing out of such stoppages.
. . . Failure on the part of the Contractor to stop
unsafe
practices
shall
in
no
way
relieve
the
Subcontractor of its responsibility therefor.
2
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
(Dkt. No. 38-2 at 15). The agreements also broadly delegate
responsibility and liability to the subcontractors for any damages
or injuries:
The Subcontractor hereby assumes entire responsibility
and liability for any and all damage or injury of any
kind or nature whatever (including death resulting
therefrom) to all persons, whether employees of any tier
of the Subcontractor or otherwise, and to all property
caused by, resulting from, arising out of or occurring in
connection with the execution of the Work, or in
preparation for the Work, or any extension, modification,
or amendment to the Work by change order or otherwise.
Id. at 15. Although, as subcontractors, Independence and Big T were
required to indemnify and hold Turner harmless for any injuries,
they were not liable for Turner’s sole negligence. Id.
The agreements also incorporated Turner’s site-specific Safety
Plan. Id. at 28. The Safety Plan specified that one of Turner’s
main responsibilities as the general contractor was “to administer
a
comprehensive
Safety,
Health,
Environmental,
and
Incident
Prevention Program” (Dkt. No. 38-5 at 4). Under the Safety Plan,
each subcontractor had to designate a “competent person,” as
defined
by
the
Occupational
Safety
and
Health
Administration
(“OSHA”), for subjects such as fall protection and excavations. Id.
at 11. OSHA defines a “competent person” as “one who is capable of
identifying existing and predictable hazards in the surroundings or
3
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
working conditions which are unsanitary, hazardous, or dangerous to
employees, and who has authorization to take prompt corrective
measures to eliminate them.” 29 C.F.R. § 1926.32(f). The Safety
Plan noted that competent persons may be required to inspect the
worksite
prior
to
performing
work,
including
“excavation
inspections” if applicable to the subcontractor’s work (Dkt. No.
38-5 at 23).
The subcontractor’s safety representative was expected to
conduct a complete safety inspection each week, and a daily
inspection of the work area so that hazards could be corrected or
reported. Id. at 16, 26. For excavation and trenching operations in
particular, “exposing contractors” were required to train involved
employees, and a competent person had to be on-site at all times.
Daily inspections of excavations were to take place, with all
reports to be submitted to Turner. Id. at 39.
II.
Newman’s Injury
The general circumstances of Newman’s accident are undisputed.
During the spring of 2012, Big T was performing waterproofing
services on the Building 9 North Tunnel of the BTC project (Dkt.
No.
38-1
at
4).
Problems
with
soil
settlement
led
to
water
infiltration, and, in September 2012, Turner directed Independence
4
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
to excavate along portions of the tunnel so that Big T could
inspect the waterproofing and perform any necessary remedial work.
Id. at 4-5. As required by the subcontract agreement, Big T had
designated Newman as its safety representative and OSHA competent
person (Dkt. No. 38-4).
On September 12, 2012, at approximately 11:00 a.m., while
working in a trench excavated by Independence, Newman climbed out
of the trench on a ladder. When he reached the top of the trench,
he stepped off the ladder and turned to speak with someone on the
other side of the trench. According to the incident report prepared
by Nathan Parrish, Turner’s safety manager, as well as Newman’s own
testimony, he was standing less than one foot from the edge of the
trench1
for
less
than
one
minute
when
the
ground
gave
way
underneath him, causing him to fall into the trench (Dkt. Nos. 38-9
at 2; 46-14 at 28-29). Newman reported the incident to Turner the
next day. He denied needing medical care, despite reporting that he
“felt [his] back pop” (Dkt. Nos. 38-9; 38-10).
1
Tom Shupe, Big T’s owner, was present at the time and said
that he would have no reason to doubt Newman’s statement (Dkt. No.
46-12 at 11).
5
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
There is a significant dispute concerning who was expected to
inspect the trench excavated by Independence, and how thorough each
party’s
inspection
needed
to
be.
Big
T’s
owner,
Tom
Shupe,
testified that, because excavation was not Big T’s specialty, he
relied on “experts” at Turner, Thrasher, and Independence to ensure
that an excavated area was adequate to perform work (Dkt. No. 47-3
at 3). In addition, Newman testified that he relied on Independence
to let him know when the trench was ready for Big T to safely
conduct its work (Dkt. No. 46-14 at 21). On the other hand, Nathan
Parrish, Turner’s safety inspector, testified that Big T should
have submitted an excavation inspection report for each day that it
worked
in
an
excavation
(Dkt.
No.
48-5
at
4).
Turner’s
superintendent, Kurt Johnson, also believed that the competent
persons for Independence and Big T were responsible for reviewing
safety, including excavations (Dkt. No. 46-13 at 5-6).
LEGAL STANDARD
Summary
documents,
judgment
is
electronically
declarations,
stipulations
appropriate
where
the
stored
information,
.
,
.
.
admissions,
“depositions,
affidavits
or
interrogatory
answers, or other materials” establish that “there is no genuine
dispute as to any material fact and the movant is entitled to
6
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c)(1)(A).
When ruling on a motion for summary judgment, the Court reviews all
the evidence “in the light most favorable” to the nonmoving party.
Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846,
850 (4th Cir. 2000). The Court must avoid weighing the evidence or
determining
its
truth
and
limit
its
inquiry
solely
to
a
determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court
of
the
basis
for
the
motion
nonexistence of genuine issues of fact.
and
of
establishing
the
Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.”
Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the
evidence
must
be
such
that
a
rational
trier
of
fact
reasonably find for the nonmoving party. Id. at 248–52.
7
could
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
APPLICABLE LAW
I.
Negligence
“In order to establish a prima facie case of negligence in
West Virginia, it must be shown that the defendant has been guilty
of some act or omission in violation of a duty owed to the
plaintiff.” Syl. Pt. 3, Aikens v. Debow, 541 S.E.2d 576 (W. Va.
2000). Whether the defendant owes a duty is a matter of law for the
court to determine. Id. at Syl. Pt. 5. “The ultimate test of the
existence of a duty to use care is found in the foreseeability that
harm may result if it is not exercised.” Syl. Pt. 3, Sewell v.
Gregory, 371 S.E.2d 82 (W. Va. 1988). Under West Virginia’s
modified
comparative
fault
approach,
a
plaintiff
may
recover
damages “so long as his negligence or fault does not equal or
exceed the combined negligence or fault of the other parties
involved in the accident.” Syl. Pt. 3, Bradley v. Appalachian Power
Co., 256 S.E.2d 879, 885 (W. Va. 1979).2
2
This rule applies despite the defendants’ repeated citation
to Shanklin v. Allis-Chalmers, 254 F. Supp. 223 (S.D.W. Va. 1966),
aff’d 383 F.2d 819 (4th Cir. 1967), which applies long-overruled
contributory negligence law.
8
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
II.
General Contractor Duty of Care
There are two principal means by which a general contractor
may be held liable to one injured on its worksite. First, the
negligence of an independent contractor may be imputed to the
general contractor if it controlled or had the right to control the
work of the independent contractor. Syl. Pt. 1, Sanders v. GeorgiaPacific Corp., 225 S.E.2d 218 (W. Va. 1976). The employer “may
retain broad general power of supervision and control as to the
result of the work” without changing its duties. Syl. Pt. 4,
Shaffer v. Acme Limestone Co., Inc., 524 S.E.2d 688 (W. Va. 1999).
This includes “the right to inspect, to stop the work, to make
suggestions or recommendations as to the details of the work, or to
prescribe alterations or deviations in the work.” Id.3
3
An employer cannot delegate its duty of reasonable care when
undertaking inherently dangerous activities. King v. Lens Creek
Ltd. P’ship, 483 S.E.2d 265, 271 (W. Va. 1996). “To constitute an
inherently dangerous activity, the work must be dangerous in and of
itself and not dangerous simply because of the negligent
performance of the work.” Id. at Syl. Pt. 3. Waterproofing and
excavating, especially the relatively shallow type at issue here,
are not inherently dangerous, as the risks involved can “be
eliminated or significantly reduced by taking proper precautions.”
Robertson v. Morris, 546 S.E.2d 770, 773-74 (W. Va. 2001) (holding
that climbing a tree to cut it down was not inherently dangerous
work); France v. S. Equip. Co., 689 S.E.2d 1 (W. Va. 2010) (holding
that sheet metal roofing work was not inherently dangerous); see
also Robinson v. Poured Walls of Iowa, Inc., 553 N.W.2d 873 (Iowa
9
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
Second, a general contractor may be liable for breach of its
own duty. See Pasquale v. Oh. Power Co., 418 S.E.2d 738, 751 (W.
Va. 1992). “A general contractor or the employer of an independent
contractor has the duty . . . to furnish such employee a reasonably
safe place in which to work.” Syl. Pt. 1, Hall v. Nello Teer Co.,
203 S.E.2d 145 (W. Va. 1974). However, “a property owner only has
a duty to turn over a reasonably safe workplace to an independent
contractor; the property owner generally cannot be held liable for
any hazards thereafter created by the independent contractor.”
France v. S. Equip. Co., 689 S.E.2d 1 (W. Va. 2010).
LEGAL ANALYSIS
I.
Turner’s Duty of Care
Newman’s
claim
for
negligent
supervision
against
Turner
alleges that it failed to “properly supervise the work to make sure
that the dirt terrace was properly constructed and compacted,” thus
creating an “unsafe working condition” (Dkt. No. 1-4 at 12). In
response, Turner argues it owed no duty to Newman because it had
delegated liability to Big T and did not exercise sufficient
control to warrant imposition of vicarious liability (Dkt. No. 42
1996) (finding that risks of excavation are the result of failing
to take precautions, not the nature of the work itself).
10
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
at 7-13). Despite Turner’s lack of control, however, it still owed
Newman a duty to provide a reasonably safe work environment, and
factual disputes preclude a ruling that Turner complied with that
duty.
A.
Vicarious Liability
Turner asserts that it did not exercise sufficient control to
be vicariously liable for Newman’s injuries. A general contractor
is not liable for injuries inflicted by its independent contractor
if it “neither controlled nor had the right to control the work.”
Sanders, 225 S.E.2d 218, Syl. Pt. 1. In Shaffer, defendant Acme
Limestone Co. (“Acme”) hired a trucking company to deliver stone.
524 S.E.2d at 697. Acme coordinated its work with the trucking
company
by
directing
which
products
to
pick-up,
setting
compensation for the trucking company’s work, suggesting the most
economic routes, and requiring safety hazard training. Id. at 696.
There was no evidence, however, that the trucking company was
required to follow any of the general contractor’s suggestions
regarding performance. Id.
The court held that one who hires an independent contractor
does not become liable for its negligence even though the employer
“retain[ed] broad general power of supervision and control . . .
11
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
including
the
right
to
inspect,
to
stop
the
work,
to
make
suggestions or recommendations as to the details of the work, or to
prescribe alterations or deviations.” Id.4 Ultimately, the court
found that Acme did not have the power of control necessary to
subject it to liability for the trucking company’s wrongs. Id.
Here, the evidence of record establishes that Turner did not
exercise sufficient control to make it liable for the negligence of
its independent contractors. As the general contractor, Turner
conducted safety inspections and coordinated the work (Dkt. No. 435
at
3).
It
retained
a
permissible
interest
in
safety.
The
subcontract agreements provided Turner with the right to stop work
it believed was unsafe (Dkt. No. 38-3 at 13), and the Safety Plan
reserved broad authority for Turner employees to ensure compliance
(Dkt. No. 38-5 at 14-15).
Likewise, Turner merely exercised “broad general power of
supervision and control” over performance of the work itself.
Shaffer, 524 S.E.2d 688, Syl. Pt. 4. For instance, Independence and
Big T agreed to furnish all the necessary labor and equipment (Dkt.
4
In adopting this rule, the court cited with favor Duplantis
v. Shell Offshore, Inc., where the Fifth Circuit held that an
interest in employee safety did not suffice to subject a principal
to liability for a subcontractor’s actions. Id. at 697.
12
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
Nos. 38-2 at 7; 38-3 at 25). Tom Shupe testified that, although he
met with Turner to discuss the project, Turner did not control the
means and methods by which Big T performed its waterproofing (Dkt.
No. 38-11 at 7-8). Newman testified that neither Turner nor
Independence instructed Big T about how to do its job (Dkt. No. 3813 at 20), and Hampton testified that Turner did not direct
Independence how to dig the excavation at issue (Dkt. No. 38-14 at
3). Turner superintendent Kurt Johnson testified that no equipment
or supplies were purchased from Turner (Dkt. No. 38-12 at 3), and
superintendent Tyson Baker testified that he provided no input as
to how the work was to be done (Dkt. No. 38-15 at 3). Based on this
testimony, it is clear that Turner did not exercise sufficient
control over either Independence or Big T to make it vicariously
liable for the subcontractors’ negligent acts.
B.
Reasonably Safe Work Environment
Although Turner is not vicariously liable for the acts of its
subcontractors, it may nonetheless be liable under West Virginia
law for violation of its duty to provide Newman with a reasonably
safe work environment. Sanders, 225 S.E.2d at 223; see also
Pasquale, 418 S.E.2d at 751 (“An employer owes a duty to provide a
reasonably
safe
place
to
work
13
to
employees
of
independent
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
contractors who are on the premises. This duty includes the duty to
warn of latent defects existing before the work is started that are
known to the employer, but are not readily observable by the
employee.”).
In Sanders, the plaintiff was injured by a crane owned and
maintained by the general contractor on whose property work was
taking place. 225 S.E.2d at 220. The injury occurred because an
independent contractor, by whom the plaintiff was not employed,
placed and operated the crane in an unsafe manner. Id. After
finding the general contractor had exercised sufficient control to
be liable for the independent contractor’s negligence, the court
concluded that the evidence supported an alternative finding that
the general contractor “knew or should have known that the crane
was placed in an unsafe manner” and permitted “such conditions to
exist without correction,” thus breaching its duty to provide a
safe work environment. Id. at 223.
Here, Newman was working on premises where his contract
required him to be, thus making him an invitee of the occupier.
Hall, 203 S.E.2d 145, Syl. Pt. 2.5 Turner, therefore, had a “duty
5
Although Turner was not the owner of the premises, its
position as general contractor fulfills the “owner or occupier”
14
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
to provide [Newman] with a safe place to work.” Sanders, 225 S.E.2d
at 223 (unsafe crane placement); Pasquale, 418 S.E.2d 738 (improper
labeling of cables in a power plant). If the risk to Newman
involved trench cave-ins, then Turner had a duty to provide a
reasonably safe work environment in that regard.
It is true that Turner cannot be held liable for the dangers
created by an independent contractor after it turns over the
worksite. France, 689 S.E.2d at 11.6 In this case, however, the
allegedly unsafe work environment that Turner provided for Big T
was created by Independence, not Big T. When Turner directed Newman
to
conduct
remedial
waterproofing
in
a
trench
excavated
by
Independence, it owed Newman a duty to ensure that the work
environment it turned over was reasonably safe. See Pasquale, 418
S.E.2d at 751. If Turner insufficiently supervised the safety
requirement. For instance, in Hall, the defendant was a general
contractor employed by the state to do highway work. Although the
land was not owned by the defendant, the Supreme Court of Appeals
imposed the “owner or occupier” duty upon it. 203 S.E.2d 145.
6
West Virginia typically requires a general contractor to
retain control over a worksite in order to be liable for dangerous
conditions created by an independent contractor. France, 689 S.E.2d
at 11. There is also no rule, as exists elsewhere, that holds a
general contractor automatically liable for the safety of all
“common work areas.” See, e.g., Funk v. General Motors Corp., 220
N.W.2d 91 (Mich. 1974).
15
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
requirements of the worksite, it then may have violated that duty.
In this regard, the parties dispute a material fact about the
completion of required inspections. In discovery, the defendants
were unable to produce any checklists for the trench inspections
they argue should have been completed between September 11-13, 2012
(Dkt. No. 36-4 at 2).
Although Parrish, Turner’s safety inspector, testified that
both Independence and Big T should have submitted excavation
inspections (Dkt. No. 47-2 at 3; 43-4 at 4), he did not ask for the
form, even after Newman’s injury, and he could not state whether
the forms actually had ever been completed (Dkt. No. 46-18 at 3-4).
The lack of inspection forms is circumstantial evidence that Turner
knew inspections were not completed and failed to ensure that the
Safety Plan had been followed. Therefore, if Turner “knew or should
have known” of an unsafe condition prior to turning over the
worksite, but failed to remedy that condition, Sanders, 225 S.E.2d
at 220, the jury could find it breached its duty to provide Newman
with a reasonably safe place to work.
C.
Contractual Delegation
Turner argues that it completely delegated its duty to provide
a reasonably safe work environment to its independent contractors.
16
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
This argument is unavailing. The subcontract agreement generally
required Big T to comply with all safety regulations, and imposed
responsibility on Big T for preventing accidents (Dkt. No. 38-3 at
10, 12). In addition, the agreement provided that Big T “assumes
entire responsibility and liability for any and all damages or
injury of any kind,” and Big T agreed “to indemnify and save
harmless” Turner against any such claims. Id. at 13.
Turner
incorporated
into
the
subcontract
agreement
the
requirements of its Safety Plan, which outlines the subcontractors’
specific duties. These include inspections “if applicable to the
subcontractor’s work,” such as daily inspection of work areas and
inspection of excavation operations (Dkt. No. 38-5 at 23, 26, 3940). Notably, however, the Safety Plan identified administration of
the program as one of Turner’s primary responsibilities, and
retained for Turner’s own employees such duties as “requir[ing]
compliance to the safety program by all personnel working on the
project” (Dkt. No. 38-5 at 4, 14).7
7
This administration is consistent with Turner’s regulatory
duties. Title 29 C.F.R. § 1926.16(a) states that “[i]n no case
shall the prime contractor be relieved of overall responsibility
for compliance with the requirements of this part for all work to
be performed under the contract.” As the Supreme Court of Appeals
has noted, OSHA issues citations to general contractors “for safety
17
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
Turner relies in part on an unpublished Fourth Circuit opinion
to support its delegation of the duty to provide a reasonably safe
work environment. McLean v. Federal Street Const. Co., Inc., 77
F.3d 469 (Table) (4th Cir. 1996).8 When viewed in the light most
favorable
to
Newman,
however,
the
facts
of
this
case
are
distinguishable from McLean. First, in McLean, the plaintiff was
injured by his own employer’s equipment; here, Newman was injured
as
a
consequence
independent
of
excavation
contractor.
work
undertaken
Second,
although
Big
T’s
by
another
subcontract
agreement did impose primary liability on it for safety, the
incorporated
responsibility
Safety
to
Plan
also
implement
and
outlined
Turner’s
ensure
compliance
right
and
with
the
requirements of the plan (Dkt. No. 38-5 at 4, 14). Under these
terms, it cannot be said that Turner had no duty to provide a
reasonably safe work environment. Finally, unlike McLean, where the
plaintiff could not proffer any evidence of negligent supervision,
violations that could reasonably have been prevented or abated by
reason of the general contractor's supervisory capacity.” France,
689 S.E.2d at 15.
8
Unpublished decisions are not binding precedent in the
Fourth Circuit. See 4th Cir. R. 32.1; Minor v. Bostwick Labs.,
Inc., 669 F.3d 428, 433 n.6 (4th Cir. 2012).
18
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
evidence sufficient to survive summary judgment supports Newman’s
argument that Turner failed to ensure that required inspections
were completed.
II.
Independence’s Duty of Care
Newman asserts that Independence breached its duty of care by
negligently building and compacting the excavation into which he
fell (Dkt. No. 1-4 at 10). In response, Independence argues that it
owed no duty to Newman, but rather that Newman and Big T were
solely responsible for Newman’s safety (Dkt. No. 41 at 6, 9-10). In
essence, Independence argues that the subcontract agreement between
Turner and Big T absolved it of any duty to exercise reasonable
care. It cites no authority to support the proposition that a
contract can impliedly eliminate duties of care owed by third
parties, nor could it. The simple fact that Big T owed a duty of
care does not lead inexorably to the conclusion that Independence
did not. Like any party, Independence had a duty to exercise
reasonable care where it was foreseeable that the failure to
exercise such care would lead to injury. See Sewell, 371 S.E.2d 82,
Syl Pt. 3.
Furthermore, the terms of Independence’s subcontract agreement
enforce this duty. Both Big T and Independence were responsible to
19
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
prevent accidents and assumed liability for “any and all damage and
injury” (Dkt. No. 38-2 at 15). Turner’s Safety Plan required all
subcontractors to “provide and maintain a safe, hazard free work
place for their employees, fellow workers, and the general public”
(Dkt. No. 38-5 at 4) (emphasis added).
When these facts are viewed in the light most favorable to
Newman,
there
clearly
are
material
disputes
concerning
the
conditions of the site and responsibility for inspections that
preclude judgment as a matter of law. The parties dispute both who
owned and placed the ladder that Newman used to exit the trench
(Dkt. Nos. 36-3 at 2; 46-12 at 13; 47-5 at 2). There also is a
dispute concerning whether and for how long Newman could safely
stand less than one foot away from the edge of Independence’s
trench.(Dkt. Nos. 36-3 at 5; 46-13 at 7; 46-16 at 4; 47-1 at 4, 7).
In addition, the inspection disputes already discussed apply with
equal force to Independence’s alleged negligence. Newman argues
that Independence had a duty under the regulations and the Safety
Plan to conduct daily inspections of its excavation work (Dkt. No.
43 at 6; 38-5 at 39). The defendants are not in possession of any
checklists for those inspections, and Newman argues that they were
not completed.
20
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
III. Res Ipsa Loquitur
In his motion, Newman argues that he is entitled to judgment
as a matter of law under the doctrine of res ipsa loquitur. This
doctrine is an exception to the rule that negligence cannot be
presumed, and it arises when “mere occurrences of certain events in
and of themselves suggest negligence, barring another plausible
explanation.” Kyle v. Dana Transport, Inc., 649 S.E.2d 287, 290 (W.
Va. 2007). “Pursuant to the evidentiary rule of res ipsa loquitur,
it may be inferred that harm suffered by the plaintiff is caused by
negligence of the defendant when (a) the event is of a kind which
ordinarily does not occur in the absence of negligence; (b) other
responsible causes, including the conduct of the plaintiff and
third persons, are sufficiently eliminated by the evidence; and (c)
the indicated negligence is within the scope of the defendant’s
duty to the plaintiff.” Syl. Pt. 4, Foster v. City of Keyser, 501
S.E.2d 165 (W. Va. 1997) (rejecting requirements that the defendant
have exclusive control and the plaintiff be without fault).
“It is the function of the jury to determine whether the
inference is to be drawn in any case where different conclusions
may reasonably be reached.” Id. at 185. However, the plaintiff must
demonstrate that he will present circumstantial evidence that
21
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
permits a jury to make the reasonable inference that the defendant
has been negligent. Kyle, 249 S.E.2d 287, Syl. Pt. 4. A theory of
res
ipsa
will
not
reach
the
jury
when
it
requires
them
to
speculate. Id. Indeed, “[i]t is ‘clearly an incorrect statement of
the law’ to say that res ipsa loquitur ‘dispense[s] with the
requirement that negligence must be proved by him who alleges it.’”
Foster, 501 S.E.2d at 178. Rather, the doctrine recognizes that
circumstantial evidence can afford an appropriate basis for finding
negligence. Id. at 184.
In Kyle v. Dana Transport, Inc., the plaintiff was a masterelectrician employed to repair the defendant’s electrical panel.
649 S.E.2d at 287. The plaintiff was injured when the panel “blew
up” as he was working on it. Id. He could not identify the cause of
the accident, and the Supreme Court of Appeals concluded that he
had not provided sufficient circumstantial evidence to allow a jury
inference that his injury would not normally have occurred without
the negligent conduct of the defendant. Id. at 292. In addition,
the plaintiff had failed to rule out that his own work on the panel
caused it to explode. Id.
Newman has not met his burden under the doctrine of res ipsa
loquitur on a motion for summary judgment. Although the defendants
22
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
did owe a duty to Newman, undisputed proof of the first and second
elements is lacking. In support of the first element, that events
of this kind typically involve negligence, Newman principally
argues that the trench failed because Independence and Turner did
not properly inspect the excavation (Dkt. No. 37 at 12-15). The
defendants dispute this contention (Dkt. No. 46 at 7).
In
addition,
under
the
second
element,
Newman
has
not
sufficiently ruled out his own conduct as a cause of his injury.
Although Newman argues it is sufficient that he did not build the
trench or place the ladder (Dkt. No. 37 at 15), neither Hampton nor
Shupe could identify who owned the ladder (Dkt. Nos. 46-12 at 13;
47-5 at 2; 36-3 at 2). Equally significant is the fact that Newman
was standing less than one foot away from the edge of the trench;
there is conflicting testimony regarding whether it was safe for
him to do, and, if so, for how long one could safely do so (Dkt.
Nos. 46-13 at 7; 46-16 at 4; 36-3 at 5; 47-1 at 4). Thus, evidence
is in contest as to whether Newman’s own conduct was responsible in
whole or in part for the incident.
23
NEWMAN v. TURNER CONSTRUCTION CO., ET AL.
1:15CV155
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S AND DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT [DKT. NOS. 36, 38, AND 40]
CONCLUSION
For the reasons discussed, the Court DENIES the motions for
summary judgment of Newman, Turner, and Independence (Dkt. Nos. 36;
38; 40). The case will proceed to trial as scheduled.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: November 1, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?