Filed: April 26, 1993
Allan H. Masinter
Charleston, West Virginia
Attorney for the Appellee
William E. Mohler
Charleston, West Virginia
Attorney for the Appellant
JUSTICE BROTHERTON delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN concurs and will file a concurring opinion.
SYLLABUS BY THE COURT
1. "Under W.Va. Code, 21-3-1, the employer and the owner of a place of employment, place of public assembly, or a public building is affixed with a statutory responsibility to maintain such place in a reasonably safe condition." Syllabus point 3, Pack v. Van Meter, 177 W.Va. 485, 354 S.E.2d 581 (1986).
2. "The owner or occupier of premises owes to an invitee
such as a non-employee workman or an independent contractor the
duty of providing him with a reasonably safe place in which to work
and has the further duty to exercise ordinary care for the safety
of such persons." Syllabus point 2, Sanders v. Georgia-Pacific
Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).
3. The "reasonably safe place to work" theory may not be
used against the owner of a place of employment when the owner
exercises no control over the equipment provided by the contractor
for use by the contractor's employees.
The appellant, Sears, Roebuck and Company ("Sears"),
appeals from a July 24, 1991, Kanawha County Circuit Court order
upholding a jury verdict awarding the appellee, Gilbert Taylor,
$150,000 in damages for injuries resulting from an accident which
occurred on May 17, 1983. At that time, the appellee was employed
as a carpenter by Mellon-Stuart Company ("Mellon") and was involved
in the construction of the Sears Automotive Center Building, which
was located across from the Charleston Town Center Mall in
Charleston, West Virginia. Mellon was the general contractor for
Sears, while Zando, Martin & Milstead, Inc. ("Zando") was the
architect under contract with Mellon.
The appellee had eighteen years of experience working
with scaffolds. In this job, he worked almost exclusively on
scaffolds which were furnished by Mellon and which he assembled
himself. The appellee was under Mellon's supervision and control
and had been working on this job for approximately five weeks when
the accident occurred.
On May 17, 1983, the appellee and another worker were
instructed to draw a chalk line on the wall of one of the rooms in
the automotive center to designate the location of a drop ceiling.
This required using fifteen-foot rolling scaffolds and a water
level: a man on one scaffold would hold one end of the water
level, while the man on the other scaffold would hold the other end
of the water level, and one of them would then make the mark on the
wall. The appellee worked on the scaffold without locking its
wheels so that he could move the scaffold along the wall simply by
holding on to the ceiling trusses, thus eliminating the need to get
down each time and unlock the wheels in order to move the scaffold.
The accident occurred as the appellee's scaffold was
flush against the wall. The appellee reached up with both arms,
while on his tip-toes, so that he could make a chalk mark on the
wall. This motion pushed the scaffold away from the wall, and the
appellee fell down between the scaffold and the wall to the ground.
The appellee sued Zando on May 15, 1985, seeking to
recover damages for his injuries. However, Zando settled with the
appellee on the day of trial, and the appellee's case against Sears
proceeded to trial on June 17, 1991.
On June 19, 1991, the jury returned its verdict, finding
. . .
. . .
Do you find, from a preponderance of the evidence, that Gilbert Taylor was negligent and that his negligence was a proximate cause of the accident.
. . .
Do you find from a preponderance of the
evidence that Sears was negligent, and that
its negligence proximately contributed to the
accident and the plaintiff's injuries?
. . .
. . .
Percentages of Negligence, If Any
GILBERT TAYLOR (if you answered 'yes' to
Question 1. above, enter percent here. 15%
. . .
SEARS (if you answered 'yes' to question 2.
above, enter percent here. 5%
. . .
Percentage of negligence, if any, of Zando,
Martin & Milstead 5%
Percentage of negligence, if any, of Mellon-Stuart 75%
We, the jury, assess Gilbert Taylor's damages
at One Hundred Fifty Thousand Dollars
($150,000.00), including medical bills of
Sixteen Thousand One Hundred Forty-two and
42/100 Dollars ($16,142.42) and lost wages of
One Hundred Thirty-three Thousand Eight
Hundred Fifty-seven and 58/100 Dollars
By order dated July 24, 1991, the lower court denied the
appellant's motion to set aside the verdict or grant a new trial.
The appellant, Sears, now argues that the lower court erred in its
ruling and appeals from that order.
Sears argues that the appellee must prove that Sears was negligent and maintains that the only argument which would possibly permit the appellee to recover in this case relates to the appellee's assertion that Sears owed the appellee a duty to provide a reasonably safe place to work. However, Sears states that there was absolutely no evidence that Sears was guilty of any negligence which either proximately caused or contributed to the appellee's injuries.
The appellee bases his argument on the general
proposition that a property owner owes a duty to employees of
contractors and subcontractors to provide a safe work environment.
The appellee contends that his accident could have been prevented,
and that as the owner of the property, Sears owed him a duty to
To support this position, the appellee cites this Court's
decision in Pack v. Van Meter, 177 W.Va. 485, 354 S.E.2d 581
(1986), wherein we stated that "[u]nder W.Va. Code, 21-3-1, the
employer and the owner of a place of employment, place of public
assembly, or a public building is affixed with a statutory
responsibility to maintain such place in a reasonably safe
condition." Id. at syl. pt. 3.See footnote 1
In response, Sears cites Hamrick v. Aerojet-General Corp., Indus. Systems Div., 528 F.2d 65 (4th Cir. 1975), and argues that W.Va. Code § 21-3-1 applies only to the employer-employee relationship, and does not create a duty on the part of Sears as owner.
In Hamrick, an employee of a subcontractor sued the
general contractor after being injured at a construction site. The
District Court denied relief, and the Fourth Circuit Court of
Appeals affirmed. The employee argued that W.Va. Code § 21-3-1
requires employers to take precautions to protect employees from
injury from mechanical apparatus. However, noting this Court's
decision in Chenoweth v. Settle Engineers, Inc., 151 W.Va. 830, 156
S.E.2d 297, 302 (1967), the District Court found that W.Va. Code
§ 21-3-1 is applicable only to the employer-employee relationship.
Moreover, the Fourth Circuit agreed with the District Court's
reasoning that the statute's reference to owners of places of
employment "now or hereafter constructed," "indicated a legislative
intent to make the safety requirements applicable to operational
industrial facilities, not to those which are merely under
construction." 528 F.2d at 67.
The specific issue addressed by this Court in Pack v. Van
Meter, supra, was whether the owner of a place of employment leased
to an employer is liable to a tenant's employee for a violation of
W.Va. Code § 21-3-6, which requires handrails on stairways and safe
treads on steps. We concluded that this type of responsibility was
one which was "reasonably shared" by the employer and the owner of
the place of the employment. Significantly, however, we
acknowledged that "some of the provisions in W.Va. Code, 21-3-1
through -18, involve safety requirements that are clearly the
responsibility of an employer because they involve machines or
other instrumentalities directly related to the employment activity
over which the owner of the place of employment exercises no
control." 354 S.E.2d at 586 (emphasis added).
In the case now before us, the property owner, Sears,
points out that under the terms of its general contract, the
contractor, Mellon, was responsible for the safety of its
employees, while Mellon's employees were also obligated to look out
for their own safety.See footnote 2 Moreover, the appellee himself testified
that he was injured because he didn't lock the wheels on the
scaffold, which enabled the scaffold to move.
At trial, Zando supervisor Richard Houston testified that
the general contractor, Mellon, was responsible for providing the
scaffolds and complying with OSHA regulations. Houston stated
that, in his opinion, the appellee should not have been up on the
scaffold, moving it along by holding on to the trusses, with the
wheels unlocked. He also pointed out that guard rails were
required only on the back and sides of scaffolds (and thus would
not have prevented the appellee's injuries, because he fell
forward), and that the appellee was capable of putting guard rails
on himself if they were needed.See footnote 3 It was Houston's opinion that the
work site was safe.
For his part, the appellee presented absolutely no
evidence of Sears' negligence, but still maintained that Sears had
a responsibility to prevent the accident. We disagree.
Sears' duty as an owner of a place of employment is to
provide a reasonably safe place in which to work and to exercise
ordinary care for the safety of persons working there. The
"reasonably safe place to work" theory may not be used against the
owner of a place of employment when the owner exercises no control
over the equipment provided by the contractor for use by the
contractor's employees.See footnote 4
In this instance, the building was not operational but
was under construction, and Sears' control over the construction
was apparently negligible. There is no evidence to indicate that
the premises were not maintained in a "reasonably safe" condition,
nor that Sears somehow failed to exercise ordinary care that
otherwise would have prevented the accident.
It was Mellon, the contractor, who supplied the scaffold
from which the appellee fell. The appellee was a carpenter who had
considerable experience and familiarity with scaffolding. He
assembled his own rolling scaffold. When he was working off the
scaffold, he chose not to lock the wheels simply as a matter of his
own convenience: if he didn't lock the wheels, he didn't have to
climb down off the scaffold to unlock the wheels each time he
needed to move it. The appellee conceded that this was the reason
he was injured.
Sears did not owe the appellee a duty beyond that which
it met, and there is no evidence to suggest that it did not
maintain its premises in a "reasonably safe condition." Because we
find that there was insufficient evidence to support the verdict,
we reverse the judgment of the Circuit Court of Kanawha County.
Footnote: 1 Specifically, W.Va. Code § 21-3-1 (1989) provides that:
Every employer shall furnish employment which shall be reasonably safe for the employees therein engaged and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render employment and the place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees . . . Every employer and every owner of a place of employment, place of public assembly, or a public building, now or hereafter constructed, shall so construct, repair and maintain the same as to render it reasonably safe. (Emphasis added.)
Footnote: 2Article 8.2(a)(1) and (2) of the general contract relates to the safety of persons and property and states that:
8.2 Safety of Persons and Property
(a) The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to:
(1) all persons acting directly or
indirectly on the Site through or under the
Contractor and all other persons who may be
affected by the Work;
(2) all the Work and all materials and equipment to be incorporated therein, whether in storage on or off the Site, under the care, custody or control of the Contractor or any of his Subcontractors or Subsubcontractors; . . .
Footnote: 3An expert who testified for the appellee stated that OSHA regulations require guardrails and toe boards on scaffolds. However, he admitted that OSHA did not apply to an owner and an employee of a contractor, but only between an employer and employee. He also testified that an employee must look out for his own safety and comply with occupational safety and health standards, and that when a worker is on a scaffold, the wheels must be locked.
Both counsel and the court agreed that OSHA regulations were not binding on the appellant, Sears.
Footnote: 4See Pasquale v. Ohio Power Co., 187 W.Va. 292, 418 S.E.2d 738 (1992), for a discussion of the duties that an employer of an independent contractor owes to employees of the independent contractor.