IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 1993 Term

No. 21135

GILBERT TAYLOR,

Plaintiff Below, Appellee,

v.

SEARS, ROEBUCK AND CO., A NEW YORK CORPORATION

QUALIFIED TO DO BUSINESS IN THE

STATE OF WEST VIRGINIA,

Defendant Below, Appellant

Appeal from the Circuit Court of Kanawha County

Honorable John Hey, Judge

Civil Action No. 85-C-1989

REVERSED

Submitted: January 26, 1993

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.

Brotherton, Justice:

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 as follows:

VERDICT FORM

. . .
. . .
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.

Yes X

. . .

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?

Yes X

. . .

. . .

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%

Total 100%

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 ($133,857.58).

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 prevent it.

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.

Reversed.

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.)

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; . . .

Both counsel and the court agreed that OSHA regulations were not binding on the appellant, Sears.

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.

W. Va. R. Civ. P. 60(a).