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09/30/94 WILLIE L. ROYAL AND JAMES RICHEY v. SAFETY

September 30, 1994

WILLIE L. ROYAL AND JAMES RICHEY
v.
SAFETY COATINGS, INC.



Appeal from Mobile Circuit Court. (CV-91-003415). Robert L. Byrd, Trial Judge.

Rehearing Denied February 10, 1995. Released for Publication May 27, 1995.

Maddox, Hornsby, C.j., and Houston, Steagall, Ingram, and Cook, JJ., concur. Almon and Shores, JJ., concur in the result.

The opinion of the court was delivered by: Maddox

MADDOX, JUSTICE.

This action was brought by two workers who were injured when a fuel tank exploded while they were cutting it for scrap. The plaintiffs sought damages, based on alleged fraudulent misrepresentations of material facts, a wanton failure to warn, a negligent failure to warn, and a negligent disposal of underground storage tanks. A jury returned a verdict in favor of the defendant, and the court entered a judgment accordingly.

Three issues are presented by this appeal: (1) whether the jury disregarded the court's instructions and engaged in "jury nullification" on the issue of whether the removal of underground storage tanks constituted a dangerous activity and imposed a non-delegable duty on the owners; (2) whether the trial court gave incorrect, misleading, and erroneous jury instructions; and (3) whether the trial court erred in failing to give certain jury instructions.

In December 1989, the defendant, Safety Coatings, Inc., contracted with Mike Hoffman Equipment Services, Inc. ("Hoffman Equipment"), for Hoffman Equipment to remove and replace five underground storage tanks located on the premises of Safety Coatings. Before Hoffman Equipment removed and transported the tanks, Safety Coatings removed as much of the contents as it could from the tanks. While the tanks were still in the ground, the vent pipes were labeled to identify the contents of the tanks, but the tanks were not labeled with any identification of the contents or with any warnings after they were removed from the ground. The tanks were checked with a measuring stick to determine if there were any residual liquids in them, and none was found. There was evidence that Safety Coatings knew that the surface of some of the flammable contents of the tanks would harden if exposed to air and that if the hard film was broken, the vapors from the remaining contents would tend to escape. Safety Coatings, however, was not involved in any way in the excavation and the removal of the old tanks.

Hoffman Equipment removed the tanks on December 26, 1989, and transported them the next day from the Safety Coatings plant to a field on Carol Plantation Road in Theodore, Alabama. No Safety Coatings employees were present when the tanks were removed, because Safety Coatings was closed for the Christmas holidays. On February 23, 1990, Mike Hoffman, the majority stockholder in Hoffman Equipment, met with the plaintiffs, Willie Royal and James Richey, and told them that the tanks were clean and ready to be cut up and hauled away. Royal and Richey were in the scrap metal business together. They began cutting the tanks on February 26, 1990. That evening, one of the larger tanks that Willie Royal was cutting ignited and began to burn. The next day, Royal and Richey continued scrapping the tank that had caught fire the night before. After they had cut about halfway through the tank, the tank next to them exploded. No one had cut on the tank that exploded.

Royal and Richey sued Mike Hoffman, Hoffman Equipment, and Safety Coatings. Royal and Richey entered into a pro tanto settlement with Mike Hoffman and Hoffman Equipment, and the case proceeded to trial with Safety Coatings as the sole defendant. After the jury found for Safety Coatings and the court entered its judgment, the plaintiffs moved for a new trial; the trial court denied their motion.

I.

Royal and Richey contend that the jury engaged in "jury nullification" by disregarding the trial court's instructions to it on whether the removal and disposal of the underground storage tanks constituted an inherently or intrinsically dangerous activity that would impose a nondelegable duty on the owners and operators of the tanks. Royal and Richey argue that the jury failed to follow this instruction and that its failure to follow it resulted in a verdict that is contrary to the law and that the trial court should have granted their motion for a new trial. The trial court instructed the jury as follows:

"Generally a principal is not liable for the negligent acts of his independent contractor and, accordingly, Safety Coatings, Inc., would not be liable for any negligent acts of Mike Hoffman Equipment Service, Inc. However, if the work contracted to Hoffman Equipment Service, Inc., was an inherently or an intrinsically dangerous activity, Safety Coatings, Inc., would be liable for any negligence of Hoffman Equipment Service.

"Accordingly, the first issue for you to determine insofar as the nondelegable duty, it would be, 'Has the plaintiff proven to your reasonable satisfaction by substantial evidence that the work entrusted to Hoffman Equipment Service, Inc., was inherently and intrinsically dangerous?'

"An intrinsic danger in an undertaking is one which adheres in the performance of the contract as a result directly from the work to be done, not from the ...


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