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February 17, 1995


Appeal from Mobile Circuit Court. (CV-91-3296). Ferrill D. McRae, Trial Judge.

Almon, Maddox, Shores, Houston, Kennedy, Ingram, Cook, and Butts, JJ., concur.

The opinion of the court was delivered by: Almon


The plaintiff appeals from a summary judgment for the defendant premises owner in a wrongful death action. The decedent, an employee of an independent contractor, died when a brick wall collapsed on him. The plaintiff, the decedent's widow and administratrix of his estate, alleges that the premises owner breached its duty to provide a safe place to work when it did not provide bracing for the contractor to install against the brick wall. The issues are whether the circuit court erred in holding that there was no fact question as to such a breach of duty or in granting a motion in limine to preclude introduction of a report made by an inspector for the Occupational Safety and Health Administration (OSHA), which included the inspector's statement that an employee of the premises owner had told an employee of the contractor that the wall did not need to be braced.

Lamar Davidson, Jr., worked as a masonry laborer for B. E. & K. Construction Company (BE&K). BE&K had contracted with International Paper Company to perform general contracting services on the premises of International Paper's mill in Mobile, Alabama. As part of a sewer replacement project, BE&K undertook to support the corner of a cafeteria building near which a trench for the sewer would be dug. To place a support beam under the corner, BE&K removed some of the brick veneer and the concrete block to make space for the support beam. There were hairline cracks in the brick veneer, and Davidson was placed as a lookout to warn of signs that the brick wall might collapse. It did in fact collapse, falling on him and killing him.

John Michael Bridges, an engineer in International Paper's engineering department, had sketched a plan for supporting the corner of the cafeteria building. He gave the sketch to Phillip James, a BE&K supervisor, and described the work to be done. James was the supervisor in charge of the crew attempting to support the corner of the building. The OSHA inspector's report includes the following:

"According to Phil James, Civil Superintendent for BE&K Construction Company, the deceased was not working on the excavation. He was a 'look-out' man stationed outside the excavation to observe the brick veneer wall and to alert employees if it began to fall. Also, Mr. James stated that he asked the engineering department of International Paper Company, Mr. Mike Bridges, Civil/Structural Engineer, whether he thought the brick veneer wall should be braced or supported. Mr. Bridges told him that the wall did not need to be braced or supported--it would stay up."

The circuit court granted International Paper's motion in limine to preclude the admission of the accident report on the ground that the report contained hearsay.

The plaintiff argues that the OSHA report should be admitted under the principle stated in Federal Rule of Evidence 803(8)(C), which provides a hearsay exception for

"Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness."

The plaintiff points out that the proposed Alabama Rules of Evidence include this provision. Further, she argues, the expansive interpretation of this rule found in Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S. Ct. 439, 102 L. Ed. 2d 445 (1988), and Hines v. Brandon Steel Decks, Inc., 886 F.2d 299 (11th Cir. 1989), would allow the admission of this report.

We need not rely on the Federal rule or on the proposed Alabama rule, because public records are admissible under a common law exception to the hearsay rule:

"The common law developed an exception to the hearsay rule for written records and reports of public officials under a duty to make them, made upon firsthand knowledge of the facts. These statements are admissible as evidence of the facts recited in them. The common law formulation of this hearsay exception has been relaxed and broadened by decisions, statutes, and rules, discussed in the ...

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