Terry Calloway v. PPG Industries, Inc. , 155 F. App'x 450 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
------------------------------------------- FILED
No. 05-10782 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar November 18, 2005
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 02-01305-CV-HS-NE
TERRY CALLOWAY,
Plaintiff-Appellant,
versus
PPG INDUSTRIES, INC.,
a corporation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
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(November 18, 2005)
Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Terry Calloway appeals the district court’s order granting summary
judgment in favor of PPG Industries, Inc. (“PPG”), in this diversity action alleging
that PPG was negligent and acted wantonly by failing to provide a safe place to
work, by failing to inform Calloway of dangers in the workplace, and by failing to
supervise and provide protective equipment. No reversible error has been shown;
we affirm.
Calloway sought damages for injuries he sustained after falling out of the
rafters at PPG’s Huntsville, Alabama, plant while installing a chilled water line
through the roof of the plant. At the time of the accident, Calloway was employed
by Delta Industrial Services (“Delta”), who contracted with PPG to complete
various jobs inside the plant. Calloway and another Delta employee, Ben Miller,
were to install the line in a mid-ceiling area above a “clean room” with a dropped
ceiling. Miller, who supervised the project, sat on air conditioning duct work in
the mid-ceiling area to drill a hole in the roof. After drilling, Miller went onto the
roof so that Calloway could feed the pipe to Miller through the drilled hole.
Calloway crawled across some duct work about 15 feet above the floor to get near
the dropped ceiling. No solid floor existed in this area, only metal beams; so
Miller had positioned a 2" by 6" by 10' board over the beams for Calloway to
stand on. Calloway stated that the area “wasn’t pitch black dark but it was dark”;
he could not see the board and had to locate it by touch. He then slid down the
duct work about three feet onto the board and stood up. Calloway turned to reach
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some pipe grease; but the board shifted and he fell through the dropped ceiling to
the floor. Neither Miller nor Calloway was wearing fall protection gear.
We review a district court’s grant of summary judgment de novo; we view
the evidence in the light most favorable to the party opposing the motion. Kelley
v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005). Summary judgment is appropriate
when “there is no genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
Calloway argues that PPG had a duty--under law, under its own policies and
contracts, and by its conduct--to protect his safety by advising him on fall
protection, but that PPG negligently let him climb untrained and unprotected into
the rafters at its plant. Calloway maintains that the evidence shows that PPG
retained the right to control safety in its plant, including how Delta employees
performed their jobs. Calloway maintains that PPG cannot avoid liability by
delegating a dangerous job to a small company like Delta and then by failing to
train uneducated workers like Calloway of the risks of their jobs.
To prevail on his negligence and wantonness claims, Calloway must show,
among other things, that PPG owed him a duty. See Kendrick v. Alabama Power
Co., 601 So.2d 912, 914 (Ala. 1992). The general rule in Alabama is that “a
premises owner [PPG] owes no duty of care to employees [including Calloway] of
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an independent contractor [Delta] with respect to working conditions arising
during the progress of the work on the contract.” Weeks v. Alabama Elec. Coop.,
Inc., 419 So. 2d 1381, 1383 (Ala. 1982). This rule will not apply if PPG “retains
or reserves the right to control the manner in which the independent contractor
performs its work.” Id. If the right of control is retained, “the relationship
changes from one of premises owner and independent contractor to that of master
and servant.” Id. (quotation omitted). But a master-servant relationship is not
created “when the owner merely retains the right to supervise or inspect work of
an independent contractor as it progresses for the purpose of determining whether
it is completed according to plans and specifications, and retains the right to stop
work that is not properly done.” Id.Thus, as the district court noted, determining the degree of control that PPG
exercised over the work of Delta employees is essential to deciding whether PPG
had a duty to provide Calloway with a safe workplace. And to determine whether
PPG controlled the work performed by Delta, Alabama courts examine the written
contract and the conduct of the parties pursuant to the contract. See Pugh v. Butler
Tel. Co., 512 So. 2d 1317, 1318-19 (Ala. 1987).
We agree with the district court that the contracts and applicable documents
show that Delta, not PPG, controlled the way in which Delta performed its work.
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The purchase order for the chilled water line project states that PPG was to pay
Delta for all labor, supervision, materials, equipment, and tools to install the line.1
And the rider to the purchase order provides that Delta’s status was that of
independent contractor. Further, the purchase order, the rider, and PPG’s
“Contractor Safety Implementation Guidelines” (“Guidelines”) place the
responsibility for the safety of contractor employees on the contractor, Delta.2
As evidence of PPG’s control over the safety of contractor workers,
Calloway points to provisions in the Guidelines stating (1) that the contractor’s job
supervisor was to meet with a PPG representative before the work to review the
required safety documents, including fall protection, and (2) that contractor
employees were to receive, before working, initial job site safety training by the
1
The general conditions to the purchase order show that PPG retained a right to inspect PPG’s
materials and fabrication; but this fact does not create a master-servant relationship between PPG
and Delta. See Weeks, 419 So. 2d at 1383.
2
The general conditions of the purchase order show (1) that Delta warranted that it would comply
with all applicable laws and rules, including the Occupational Safety and Health Act of 1970
(“OSHA”), and (2) that PPG’s inspection of Delta’s materials and fabrication did not relieve Delta
of its warranties. The rider provides (1) that Delta’s work and services would be in compliance with
OSHA standards, (2) that Delta was to take all necessary precautions for the safety of its personnel,
and (3) that Delta was to develop a health and safety program prior to commencing work, the
compliance with which Delta was solely responsible. And the Guidelines state that the contractor
is responsible for (1) communicating and enforcing all safety regulations to its employees, and
(2) supplying and enforcing the use of personal protective equipment to its employees. The
Guidelines also set forth that the contractor is to provide adequate fall protection when the hazard
of a fall exists as defined by OSHA standards.
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contractor and a PPG representative. Calloway also relies on a general written
statement by a PPG vice president that PPG would maintain a safe environment.
We do not read these items as PPG giving instructions to Delta employees
on how to perform their work. Instead, these items, along with the other
documentary evidence, show that PPG had the right, not the duty, to ensure that
Delta complied with Delta’s duties under the purchase order and rider, including
workplace safety. See Pate v. U.S. Steel Corp., 393 So. 2d 992, 996 (Ala. 1981)
(no duty where owner had contractual right to enforce safety but took no
affirmative act to exercise this right); see also Columbia Eng’g Int’l, Ltd. v. Espey,
429 So. 2d 955, 967 (Ala. 1983) (drafting of contracts containing safety provisions
does not constitute an undertaking to enforce safety).3
3
Our conclusion is not changed by Calloway’s citation to PPG’s own fall protection policy. The
policy required training in fall protection and the use of a full body harness when the potential free
fall was six feet or more; but the policy also stated that contractors were to assure that their
employees were trained in basic fall protection before assigning those employees to work in elevated
unprotected locations. And testimony about this policy by Bill Bajoras, a PPG engineer who
oversaw the chilled waterline project, does not change our conclusion. Bajoras first stated that the
fall protection policy applied to PPG employees. Calloway’s lawyer asked if the same policies and
procedures applied to anyone else in the plant; Bajoras answered, “As far as I guess it could be
specific as far as, you know, who else is in the plant.” But after this statement, on which Calloway
places much emphasis, Bajoras testified that PPG attempted to adhere to industry safe work practices
“[a]gain, for PPG employees.” Nor are we persuaded by Bajoras’s testimony that, if PPG observed
a safety violation by a contractor employee, PPG could approach the contractor to correct the
employee’s behavior and that PPG eventually had the right to stop work if the contractor employees
refused to comply with safety guidelines. See Thomas v. Pepper S. Constr. Co., 585 So. 2d 882, 884
(Ala. 1991) (stating that defendant’s contractual right to enforce safety if violation is observed does
not alone constitute a voluntary assumption of the duty to inspect for safety) (citation omitted).
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And we agree with the district court that PPG, through its conduct, did not
retain the requisite degree of control over the chilled water line project to create a
duty to provide Delta employees with a safe workplace. Upon entering the plant,
independent contractor workers were required to sign in; but this fact proves only
that PPG employees knew that Delta (and other contractor) workers were on site.
Delta was responsible for providing the equipment, including safety equipment,
for the chilled water line project. Miller, a Delta employee, supervised the project;
Miller guided Calloway on how to conduct the job and told him to stand on the
board from which he ultimately fell. Only Miller and Calloway were present in
the mid-ceiling area when the accident occurred; they saw no PPG employees
while working in this area.4
We do not assign much weight to the fact that Delta completed many
projects for PPG over seventeen years. As the district court noted, that a premises
owner hires an independent contractor for many jobs does not by itself change the
status of the independent contractor. More relevant is Calloway’s contention that
PPG assumed control by giving him a safety handbook and showing him a safety
4
The project was conducted in a mid-ceiling area not in general view of the workers on the
ground. Ray Piscorz, an owner of Delta, testified that the area where Calloway and Miller were
working could be viewed by part of the plant and that he believed Miller and Calloway could have
been seen as they climbed to the mid-ceiling area. But Calloway produced no evidence that a PPG
employee did see Miller and Calloway as they climbed to and worked in the mid-ceiling area.
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video. See, e.g., Ramirez v. Alabama Power Co., 898 F. Supp. 1537, 1543 (M.D.
Ala. 1995) (offering “safety tips” to contractor employees is one factor showing
control), aff’d, 86 F.3d 1170 (11th Cir. 1996) (table). But we cannot say--in the
light of all the other evidence establishing a lack of control by PPG over the
chilled water line project--that showing a video and issuing a handbook raise a
disputed fact issue that PPG retained control over the chilled water line project.
Calloway also contends that PPG was liable for his safety because installing
the chilled water line was inherently dangerous due to the height at which the job
occurred. See Boroughs v. Joiner, 337 So. 2d 340, 342 (Ala. 1976) (stating
general Alabama rule that “one who employs a contractor to carry on an inherently
or intrinsically dangerous activity cannot thereby insulate himself from liability”).
Because we affirm the district court’s conclusion that PPG retained no control
over Delta’s installation of the chilled water line, we doubt that we can impose
liability on PPG under the inherently dangerous act doctrine. See Procter &
Gamble Co. v. Staples, 551 So. 2d 949, 953 (Ala. 1989) (where contractor’s
injured employee seeks to charge premises owner with duty to provide safe
workplace, plaintiff must prove that the defendant “exercised control over the
jobsite and control over the manner in which the work was to be done, and prove
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either that the work was intrinsically dangerous or that the defendant had
undertaken to provide safety on the jobsite”) (emphasis added).
In any event, Calloway presented no evidence that installing a chilled water
line from an elevated location is inherently dangerous. An inherently dangerous
act is “work fraught with danger, no matter how skillfully or carefully it is
performed.” Stovall v. Universal Constr. Co., 893 So. 2d 1090, 1099 (Ala. 2004)
(citation omitted). Alabama courts have refused to categorize similar acts as
inherently dangerous. See, e.g., id. (painting the interior of a rocket from a ladder
at night was not inherently dangerous and noting that inherently dangerous work
involves acts such as removal of highly caustic paint remover, aerial spraying of
pesticide, and use of dynamite).
And Calloway asserts that the danger of this job was not obvious to him: he
merely was an untrained laborer who followed orders and trusted his supervisor.
PPG owed Delta’s employees, as invitees, a duty to warn of hidden dangers known
to PPG but (1) unknown to Delta or (2) that Delta could not have observed
through the exercise of reasonable care. See Gen. Motors Corp. v. Hill, 752
So. 2d 1186, 1187 (Ala. 1999). But as the district court said, despite Calloway’s
purported lack of education, “[a] person using reasonable care should appreciate
the danger of standing on a narrow board he could not see” while 15 feet above
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the ground in an unfamiliar area in near darkness. See, e.g., Owens v. Nat’l Sec.
of Alabama, 454 So. 2d 1387, 1389 (Ala. 1984) (stating, where plaintiff fell over
forklift in darkened maintenance room, that “[w]hen someone proceeds through an
unfamiliar facility in the dark, he has no right to assume that his course is clear”).
Calloway also argues that, based on his expert’s testimony, we should
impose liability on PPG under the “multiemployer” doctrine: where an employer
who controls a worksite safety hazard may be liable under OSHA, 29 U.S.C.
§ 654(a), even if the threatened employees are employees of another employer.
See Universal Const. Co. v. Occupational Safety & Health Review Comm’n, 182
F.3d 726, 728 (10th Cir. 1999). But Calloway cites no binding authority where
this Court has applied this doctrine of liability to property owners who do not
function as general contractors; and we see no reason to impose such liability on
PPG under the facts of this case. See Southeast Contractors, Inc. v. Dunlop, 512
F.2d 675 (5th Cir. 1975); Horn v. C.L. Osborn Contracting Co., 591 F.2d 318, 321
(5th Cir. 1979) (reading OSHA in conformance with general rule that “contractor
is not responsible for the acts of his subcontractors or their employees” and
refusing to apply multiemployer doctrine to employee of independent contractor);
see also Am. Petroleum Inst. v. OSHA, 581 F.2d 493, 508 (5th Cir. 1978) (noting
that doctrine applies to multiemployer construction worksites).
AFFIRMED.
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