Maxwell v. Davco Corp. of Tennessee

776 S.W.2d 528, 1989 Tenn. App. LEXIS 374
CourtCourt of Appeals of Tennessee
DecidedMay 18, 1989
StatusPublished
Cited by13 cases

This text of 776 S.W.2d 528 (Maxwell v. Davco Corp. of Tennessee) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maxwell v. Davco Corp. of Tennessee, 776 S.W.2d 528, 1989 Tenn. App. LEXIS 374 (Tenn. Ct. App. 1989).

Opinion

TOMLIN, Presiding Judge (Western Section).

Plaintiffs, Eddie Maxwell and Wife,1 brought this negligence action against Dav-co Corporation (hereafter “Davco”) in the Circuit Court for Shelby County to recover damages for personal injuries sustained by plaintiff while attempting to repair a garage door on a building leased by Davco to plaintiff's employer. Plaintiff’s suit was based upon alleged negligence on the part of Davco in knowing of the defective condition of the door and in failing to correct the defects. The trial court granted Davco’s motion for summary judgment. In his brief, plaintiff presents the following two issues to be considered on appeal: whether the trial court erred in granting summary judgment for Davco: (1) on the ground that Davco was not liable for defects arising on the premises after the date of the initial lease of February 4, 1975; and (2) on the ground that plaintiff was guilty of assumption of risk and/or contributory negligence. In ruling on Davco’s summary judgment motion, the trial court did not grant the motion on either of the two above alleged grounds. We perceive the sole issue to be whether or not the trial court erred in granting summary judgment based upon the record before it. We find no error and affirm.

At the time of the accident the plaintiff was employed by Allstate Fabricating Cor[530]*530poration, a metal fabricating company in Shelby County. He had been employed as a maintenance man by Allstate for ten years. His duties included the maintenance and repair of machinery and equipment as well as maintenance of the building occupied by Allstate. Allstate leased this building from Davco, an engineering firm also located in Shelby County. Both Davco and Allstate are Tennessee corporations. All of the outstanding common stock of both Davco and Allstate is owned by Industry General Corporation, another Tennessee metal fabricating company. Ninety percent of the outstanding common stock of Industry General is owned by William H. Davenport, who serves as president of Industry General, Davco, and Allstate.

Plaintiff sustained severe injuries to his left hand and fingers while attempting to repair an overhead garage door of the shop, one of his regular maintenance duties. Plaintiff testified that during the entire time of his employment by Allstate until his release in the spring of 1986 Allstate had always been in the same building with the same overhead doors. He stated that the door which caused his injury was in good condition when he went to work for Allstate in 1975.

The uncontroverted proof was to the effect that while the doors were in good condition at that time, the doors became worn, warped, out of shape, and would periodically jump off the track, primarily as a result of misuse and abuse by Allstate’s employees, requiring plaintiff to repair them. There was uncontradicted testimony from another witness to the effect that the principal cause of the wear and tear on these doors was the fact that they were run into repeatedly by Allstate employees driving forklift trucks. Allstate began to have trouble with the doors in 1977 or 1978, with the condition of the doors growing steadily worse over the years. When a door got off the track, it was plaintiff’s duty to put it back.

According to plaintiff, he had occasion to repair the doors at least eight or ten times, and in fact had done it so often that he had developed a regular technique or routine to follow when a particular problem arose. The malfunction of the door on the day of the accident in question was of a type that regularly occurred and was one for which plaintiff had developed a standard repair procedure.

Although there were a few technical differences in the several doors to the building, they bore many similar characteristics. The overhead garage door consisted of multiple horizontal panels connected to one another. At the end of each panel there were one or more sets of rollers which fit inside of a metal track, attached to the building and running vertically along each side of the door up to the ceiling, at which point it curved inwardly and ran horizontally back across the ceiling.

A metal shaft was affixed to the top of the door from one end to the other. Attached to this shaft were two springs and at each end of the shaft was located a pulley around which was wound a cable that served the function of raising and lowering the door. When the door was up, the springs had very little tension on them and the cables were wound around the pr’-eys. When the door was in the down position, the resulting tension caused the springs to tighten, which turned the shaft, causing the pulleys to rotate, thereby unwinding the cables so the doors could be lowered. The weight of the door itself forced it to remain down when tension was on the springs.

On the day of the accident, the shop supervisor advised plaintiff that the door was broken and he should fix it. Plaintiff observed from the inside that the cable on the right-hand side of the door was off the pulley, with the bottom on the right-hand side of the door almost on the floor, while the left side was about five to six inches off the floor. The springs and the cables were in satisfactory condition. Plaintiff stated that he was very familiar with the installation of this door, and that in order to get tension off the spring it was necessary to lift the lower end of the door. Plaintiff outlined the several steps to be taken as follows: He would first install a steel shaft approximately eight inches long [531]*531and five-eighths inch in diameter into a hole in the hub of the spring to prevent it from rotating. Next, he would level the door, put the cable back on the pulley, take the rollers off, then put them back in the track. At this point he would remove the pin, permitting the door to roll up.

To do the repairs, plaintiff had climbed up the cross members of the frame of the door to the door’s top. He had placed the pin in the spring, which had rotated sufficiently to where the pin rested against part of the building, holding it in place. He then leveled up the door and was in the process of putting the cable onto the pulley when, as he put it, “something popped.” At this point the cable tightened, catching some of the fingers of his left hand under it. With the use of a cutting torch, plaintiff cut the cable, permitting him to extricate his hand.

At the time plaintiff gave his deposition he testified that neither he nor anyone else knew exactly what happened. He thought, but did not know for a certainty, that possibly the spring or the pin had broken. Later, at the time the motion for summary judgment was argued, counsel for plaintiff and Davco stipulated that if plaintiff were permitted to sign an affidavit, he would state in effect that what he thought happened was that a fellow employee of Allstate was using a forklift to hold the door up, and that either the forklift came down or the employee let it down, causing the door to fall, thereby setting off the chain of events resulting in the loss of his fingers.

In addition to plaintiffs testimony, there was testimony by other Allstate employees that just prior to the accident a forklift was outside the building with its forks under the lower end of the door. However, there was no testimony to the effect that the forks were holding the door up or that the forklift was actually used to level the door. It should be noted in addition that plaintiff at no time testified as to the role of the forklift in this operation at the time he gave his deposition.

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Bluebook (online)
776 S.W.2d 528, 1989 Tenn. App. LEXIS 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maxwell-v-davco-corp-of-tennessee-tennctapp-1989.