Carl Wren and Frances Marie Wren, Cross-Appellees v. Sullivan Electric, Inc., Cross-Appellant

797 F.2d 323

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 17, 1986
• Docket: 84-6118, 85-5097
• Status: Published

Opinions

MERRITT, Circuit Judge.

This is a Tennessee diversity action by a construction worker for personal injury against a subcontractor not his employer. The plaintiff, Carl Wren, was the employee of a plaster subcontractor at a construction site for which defendant Sullivan Electric was the electrical subcontractor. Allegedly as a result of substandard lighting, Wren fell into an open elevator shaft and was seriously injured. The primary questions presented are whether plaintiff belonged to the class protected by the applicable state and federal safety statutes and regulations; whether under the circumstances the violation of those regulations constituted negligence per se under Tennessee law; and whether the defenses of assumption of the risk and contributory negligence are available to the electrical subcontractor. We conclude that Wren fell within the class protected by the worker safety regulations and therefore within Tennessee’s negligence per se doctrine. The doctrines of contributory negligence and assumption of the risk do not apply under such circumstances in Tennessee, and the case must be reversed and remanded for a new trial.

I.

Carl Wren was a supervisor for Tarpley & Tarpley Plastering Co. when he sustained a broken leg in December of 1975. He was unable to work for approximately one month, then returned to work on light duty, making deliveries.

On January 16, 1976, he was injured at the Hubbard Hospital construction site in Nashville. While on the site making a delivery, he went down to the basement to instruct some workers. Because of construction changes, the route that he had taken on such trips in the past was blocked, so that he instead used another corridor, which was unlit. About half-way down the corridor he fell into an unlit elevator shaft, sustaining a broken back which left him totally disabled.

Plaintiff filed suit against Sullivan Electric, claiming that the temporary lighting that it had installed in its capacity as electrical subcontractor was inadequate under the applicable state regulations, which incorporated the federal occupational health and safety standards.¹ The illumination levels in the regulations require one 150-watt bulb per two hundred square feet, while the contract between Sullivan and the general contractor provided for only one such bulb per two thousand square feet. Wren maintained that under Tennessee law the violation of a statute or regulation constitutes negligence per se as to those whom the statute or regulation was meant to protect.

The trial court granted summary judgment in favor of Wren as to that issue, holding that Sullivan Electric had a duty to comply with the safety standards despite the subcontract, that failure to so comply constituted negligence per se under Tennessee law, and that Sullivan Electric had breached its duty of compliance and was thus negligent per se. The District Court then allowed the case to go to the jury on the issues of contributory negligence and assumption of risk. The jury returned a verdict for the defendant, from which plaintiff appeals. The defendant, meanwhile, cross-appeals the District Court’s grant of summary judgment for the plaintiff on the negligence per se issue.

II.

The plaintiff’s argument can be summarized as follows: the trial court acted correctly in granting summary judgment on the issue of negligence per se, but erred in allowing the issues of contributory negligence and assumption of risk to reach the jury. The defendants respond that the trial court's actions were correct as to matters presented at trial, but that the trial court erred in granting summary judgment on the negligence per se issue.

This court has previously held, and both parties agree, that under Tennessee law the violation of a statute or regulation is negligence per se as to members of the class that the statute or regulation is intended to protect. Teal v. E.I. DuPont de Nemours & Co., 728 F.2d 799 (6th Cir.1984), following Alex v. Armstrong, 215 Tenn. 276, 385 S.W.2d 110 (1964); Taylor v. Coburn, 597 S.W.2d 319, 322 (Tenn.App. 1980); Berry v. Whitworth, 576 S.W.2d 351, 353 (Tenn.App.1978). The questions here involve the application of that rule, namely: (1) was it error for the District Court to find that Sullivan had a duty to comply with the statute given the language of the contract; (2) was Wren a member of the class protected by the statute and regulation in question; and (3) was it error for the District court to allow the jury to decide issues of contributory negligence, assumption of risk, lack of notice and lack of control?

Sullivan argues that its work was not in violation of the regulations because it had not contracted to provide complete temporary lighting of the sort envisioned by the regulations, but only to provide one 150-watt light bulb per two thousand square feet. Thus, although the general contractor remained obligated to provide lighting up to the required level, Sullivan’s obligation was merely to furnish the lighting provided for by the contract. By contracting to provide part of the lighting required by the safety regulations, Sullivan argues, it did not assume the responsibility of providing lighting up to the required level; that responsibility was solely that of the general contractor.

The problem with this argument is that the contract between Sullivan and the general contractor did not simply state the levels of lighting that Sullivan was to provide; it also provided that all work done was to be in compliance with all applicable construction and safety regulations:

This subcontractor shall comply with all State and Federal Safety Laws and will be responsible for any fines levied due to non-compliance of any laws.

Subcontract agreement, § 7.

2. Codes and Standards

A. The entire electrical installation shall be made in strict accordance with the requirements of any city, county, state or federal codes having jurisdiction, including the latest edition of the National Electrical Code and the Department of Labor’s Occupational Safety and Health Standards and any other amendments pertaining thereto.

B. Should any work shown on the drawings or herein specified be construed as being contrary to or not conforming to the aforementioned codes, such alleged confliction [sic] shall be brought to the attention of the Architect in sufficient time prior to bid date for review so that such point in question may be approved and/or corrected by the Architect.

Specifications, § 16A.

Thus, under the language of the contract, Sullivan was required to perform work up to code, and to notify the Architect wherever it appeared that fulfilling specifications in the contract would result in non-compliance with local, state or federal regulations. Sullivan has not argued that it gave such notice, nor that it had reason to believe that lighting up to the required levels was to be provided by someone else. Furthermore, the rules of construction provided in the Federal OSHA regulations, 29 C.F.R. § 1926.16 (incorporated under Tennessee law as Tenn.Admin. Comp. § 0800-1-6.16) state that “[t]o the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards ... with respect to that part.” It is thus not enough for Sullivan to assert that, because it fulfilled the requirements of a contract that did not meet the regulations’ requirements, it had no responsibility to comply with the regulations. Such an approach would conflict with the plain language of the contract, which requires compliance with the regulations, and would also render the regulations a nullity as applied to subcontractors who comply with sub-par specifications, a result plainly inconsistent with the letter and intent of the state and federal safety regulations.

Up to this point the case is straightforward, and there is no problem with the District Court’s rejection of Sullivan’s contract argument. The problem is that although Wren was authorized by his employer to carry materials and information to fellow plasterers at the hospital site, his employer states that he told him not to go into the building. The jury apparently accepted the employer’s testimony as true and found for the defendant on grounds of assumption of the risk or contributory negligence or both.

In Teal v. DuPont, supra, this court found that the OSHA statute incorporated in Tennessee law imposes on a contractor both the general obligation to protect its own employees authorized to be on the site by providing a safe workplace, and a specific duty to comply with the regulations and thus provide to all workers on the site a workplace free from the specific hazards envisioned in the regulations. 29 U.S.C. § 654(a)(1) states that each employer shall furnish “to his employees” a job and workplace free from recognized hazards, while § 654(a)(2) imposes a duty to comply with the OSHA standards without reference to any particular class of individuals. See 728 F.2d at 804-05.

Thus Wren falls within the classes protected by Tennessee’s safety statute and regulations incorporating OSHA standards. Under these circumstances it appears that it was error to permit the defenses of assumption of the risk and contributory negligence to go to the jury. The general rule is that where negligence per se is established as the result of the violation of a statute or regulation, the defendant may still raise the defenses of contributory negligence and assumption of the risk, see, e.g., Lahman v. City of Knoxville, slip op. (Tenn.App., W.D., # 1031, Feb. 12, 1986) [Available on WESTLAW TN-CS database] (available on LEXIS, TENN file); Union Ry. Co. v. Jinks, 55 Tenn.App. 491, 402 S.W.2d 495 (1965), unless the statute violated was designed to protect workers from injury. See American Zinc Co. v. Graham, 132 Tenn. 586, 179 S.W. 138 (1915) (mine safety statute); Tennessee Eastman Corp. v. Newman, 22 Tenn.App. 270, 121 S.W.2d 130 (1938) (Workshop and Factory Inspection Act); Holliston Mills v. McGuffin, 177 Tenn. 1, 145 S.W.2d 1 (1940) (same Act; “[W]hen the statute is violated by the master the servant does not assume the risk regardless of his knowledge.”); State v. Clymer, 27 Tenn.App. 518, 182 S.W. 2d 425 (1943) (mine safety and inspection statute and regulations) (quoting American Zinc). In all of these cases, the opinions have stated that the various worker safety provisions involved were remedial in nature and thus placed the duty of compliance on the employer, so that it would be inconsistent with the intent of the legislature to allow the interposition of defenses such as assumption of risk and contributory negligence. As the Tennessee Supreme Court stated in American Zinc:

To hold that he [the worker] assumed the risk would be equivalent to a repeal of the statute, since it would be a continuing invitation to the company to forbear compliance with its provisions. The statute was passed under the police power of the state for the purpose of protecting those who are unable to protect themselves, occupying as they necessarily do a position much inferior in financial security to that of their employers; the physical necessity of themselves and their families making it essential that they should have work in order to secure the means of sustenance. It would defeat this beneficent purpose if it should be admitted as a sound principle that a failure of the employer to obey the statute could be condoned by the employee____ Such acts being passed to define rights and duties for the better regulation of business, and hence indirectly for the better regulation of society, must be sustained. They are not amenable to the doctrine of assumption of the risk for the reasons we have stated, since a contrary decision would result in the courts loosing what the legislature has bound.

132 Tenn. at 589-90, 179 S.W. 138. Accord, Restatement of Torts (Second) § 483 comment c (“There are, however, exceptional statutes which are intended to place the entire responsibility for the harm which has occurred upon the defendant. A statute may be found to have that purpose particularly where it is enacted in order to protect a certain class of persons against their own inability to protect themselves____ In such a case the purpose of the statute would be defeated if the contributory negligence of the [plaintiff] were permitted to bar his recovery.”); §§ 285-288B. Thus, once negligence per se has been established as a result of the violation of a worker safety statute, the only questions left to be resolved are those of proximate cause, injury, and damages.

The statutes and regulations involved here are not distinguishable from those involved in the earlier cases. See Tenn. Code Ann. § 50-3-102 (protective purpose of statute). Nor is there anything in the structure of the acts or the language of the regulations to suggest that they should be afforded different treatment than that customarily provided worker safety statutes under Tennessee law. Accordingly, we hold that it was error to place the issues of contributory negligence and assumption of risk before the jury.

We also find no merit in Sullivan’s defenses of lack of notice and lack of control. As discussed above, in Tennessee a finding of negligence per se growing out of a violation of a worker safety statute or regulation is not rebutted by a lack of notice or control, as the duty is not one of ordinary care or reasonable conduct but one of strict compliance with the statute or regulation.²

Accordingly, the District Court’s grant of partial summary judgment for the plaintiff is affirmed, the jury’s finding for the defendant is reversed, and the case is remanded for further proceedings in light of this opinion.

1 . Tenn.Admin.Comp. § 0800-1-6.56, incorporating 29 C.F.R. § 1926.56 as authorized by Tennessee OSH Act of 1972, Tenn.Code Ann. §§ 50-3-101 et seq.

2 . Judge Nelson’s concurring opinion suffers from two important defects on this issue with regard to the testimony of Wren’s employer that he ordered Wren not to enter the building. The first is that this suit is against a third party subcontractor who allegedly did not provide a workplace free of specific hazards, as discussed above, not against the employer for failing to provide a safe workplace for his own employees. See Teal, supra. In light of Tennessee’s clearly-articulated policy in favor of strict compliance with worker safety regulations, it would make no sense to excuse the electrical subcontractor’s negligence on the fortuitous basis of comments made by Wren’s employer. Second, there is no support at all in the Tennessee statutes, regulations, or case law for the distinction that Judge Nelson proposes. Thus, the duty of strict compliance should be read as just that. Ubi lex non distinguit, nec nos distinguere debemus.