Slifer v. Wheeler & Lewis

567 P.2d 388
CourtColorado Court of Appeals
DecidedAugust 2, 1977
Docket75-921
StatusPublished
Cited by4 cases

This text of 567 P.2d 388 (Slifer v. Wheeler & Lewis) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Slifer v. Wheeler & Lewis, 567 P.2d 388 (Colo. Ct. App. 1977).

Opinion

567 P.2d 388 (1977)

Cecil S. SLIFER, Plaintiff-Appellant,
v.
WHEELER & LEWIS, Defendant-Appellee.

No. 75-921.

Colorado Court of Appeals, Div. III.

May 5, 1977.
Rehearing Denied May 26, 1977.
Certiorari Granted August 2, 1977.

*389 Fischer & Wilmarth, Elery Wilmarth, G. William Beardslee, Fort Collins, for plaintiff-appellant.

*390 Ellison, deMarino & Knapp, Margaret Bates Ellison, Denver, for defendant-appellee.

SMITH, Judge.

Plaintiff, Cecil Slifer, commenced this action against defendant, Wheeler & Lewis, an architectural firm, (the Architect), to recover damages for injuries sustained as a result of a building construction accident. The jury returned a verdict for Slifer in the amount of $105,000, but the trial court entered a judgment in favor of the Architect, notwithstanding the verdict. Slifer appeals. We reverse and remand with instructions to reinstate the jury verdict.

Slifer's complaint alleged that the Architect was negligent in both the design and supervision of construction of the high school building in Ft. Collins where plaintiff was working when the injury occurred, and that this negligence proximately caused his injury. At trial, there was no evidence of either negligence in design of the building or of contributory negligence on the part of Slifer. Thus, the sole ultimate issue tried related to the Architect's allegedly negligent supervision of construction.

Slifer was a welder-carpenter who with a co-worker, Woodward, was welding the connective plates which attached the roof beams to the upright columns which had been erected to support the roof of the building. They were so engaged when the section of the roof upon which they were working collapsed. Slifer received severe crushing injuries to the heels of both feet, resulting in intense pain and permanent impairment of his ability to walk.

The evidence disclosed that in 1969, the Poudre Valley School District # R-1 had entered into a contract with Wheeler & Lewis, the Architect, which firm specialized in design and supervision of school buildings. The Architect agreed to furnish all architectural, engineering, and "supervisory services" required in connection with construction of several schools in the Fort Collins area, one of which was the new high school where Slifer was injured. G.E. Johnson Construction Company was general contractor for construction of the building, pursuant to a contract it entered into with the school district, and in that contract it agreed to do all the work in a substantial and workmanlike manner and in strict conformity with all plans. The general contractor then sub-contracted out the fabrication and erection of all structural members to Rocky Mountain Prestress, Inc., for whom Slifer worked. Rocky Mountain Prestress agreed in its contract to provide "shop drawings" showing all of the erection procedures including shoring and bracing detail, and the sequence of installing such bracing and shoring.

The specific issue now before this court is whether the trial court erred in granting defendant's motion for judgment notwithstanding the jury's verdict. In evaluating an N.O.V. motion, the trial court must view the evidence in the light most favorable to supporting the verdict of the jury, and in attempting to justify the verdict, it must apply in favor of the verdict every reasonable inference that can legitimately be drawn from the evidence. Brent v. Bank of Aurora, 132 Colo. 577, 291 P.2d 391; Eberle v. Hungerford, 130 Colo. 167, 274 P.2d 93. Therefore, a jury's verdict may be set aside and a motion for judgment notwithstanding such verdict may only be granted if the evidence is such that reasonable men could not from the evidence, reach the same conclusion as did the jury, McGlasson v. Barger, 163 Colo. 438, 431 P.2d 788, or if the trial court determines that it erred in resolving those questions of law which result in its submitting the case to the jury.

A. THE EXISTENCE OF A DUTY RELATIONSHIP

Mindful of these principles, we address the paramount substantive issue here which is: Under the terms of both the Architect's contract and the contractor's contract, the provisions of which applied to the Architect, did the Architect's responsibility to "supervise" construction of the building impose upon it a duty to see that reasonable precautions were taken in protecting the workmen on the site from unsafe conditions.

*391 Generally, as the Architect maintains, the duty to supervise construction creates only a duty to see that the building when constructed is in compliance with those plans and specifications contracted for. Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630; Garden City Floral Co. v. Hunt, 126 Mont. 537, 255 P.2d 352; Day v. National U. S. Radiator Corp., 241 La. 288, 128 So.2d 660. See § 12-4-102, C.R.S.1973.

In our view, however, this is only a general rule of interpretation which is inapplicable here. Examination of the specific contract provisions indicates that a different intention on the part of the contracting parties could reasonably be inferred. The provisions of the contract between the school district and the Architect, as well as those contained in the agreement between the school district and the contractor, to which the Architect agrees it was bound, impose much broader and more extensive supervisory responsibilities upon the Architect.

In construing the terms of an agreement, which embraces more than one instrument, we are bound by the principle that a contract in its entirety must be enforced as written. Fuller & Co. v. Mountain States Investment Builders, Colo.App., 546 P.2d 977; Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85. If the language is unclear, or subject to conflicting interpretation, then the court must give effect to the intention of the parties, taking into consideration the facts and circumstances of the particular case, including the conduct of the parties. Nahring v. Denver, 174 Colo. 548, 484 P.2d 1235; Leach v. LaGuardia, 163 Colo. 225, 429 P.2d 623; Hutchinson v. Elder, 140 Colo. 379, 344 P.2d 1090.

Here, the contract between the contractor and school district provides, in relevant part:

"He [the Contractor] . . . shall designate a responsible member of his organization on the work whose duty shall be prevention of accidents. The name and position of any person so designated shall be reported to the Architect by the Contractor." (emphasis supplied).

And, a provision in the agreement between the Architect and school district reads:

"The Architects shall at all times keep proper and accurate accounts with respect to the work, which shall be available at all times to the District, complete records of all plans, specifications and drawings

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Related

Wheeler & Lewis v. Slifer
577 P.2d 1092 (Supreme Court of Colorado, 1978)
Krieger v. J. E. Greiner Co.
382 A.2d 1069 (Court of Appeals of Maryland, 1978)

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Bluebook (online)
567 P.2d 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slifer-v-wheeler-lewis-coloctapp-1977.