Opinion

Kathy Thomas, Personal Representative of the Estate of Martin Duane Thomas, Deceased v. Tennessee Valley Authority

  • 769 F.2d 367
  • 1985 U.S. App. LEXIS 21062
Court
Court of Appeals for the Sixth Circuit
Filed
Aug 2, 1985
Status
Published
On the bench
Merritt, Wellford, Edwards
Cited by
5 cases

The opinion

MERRITT, Circuit Judge,

dissenting.

The plaintiff-decedent fell to his death from a TVA tower because of a defective guard rail on TVA construction work performed by J.A. Jones. TVA inspection people on the job had previously found two hazardous guard rails near the place where plaintiff’s decedent fell, and TVA warned the contractor that the guard rails were not up to safety standards. TVA had an engineer on the job. Its agents on the job gave directions to J.A. Jones and supervised the construction work. Even assuming that TVA has no vicarious liability arising from J.A. Jones’ negligence because J.A. Jones was an independent contractor, it is clear that TVA had undertaken to remedy hazardous conditions at the job site and did discover the dangerous situation and did take some steps to remedy it — namely, to instruct J.A. Jones to correct the problem. After a week, J.A. Jones had done nothing, TVA had done nothing further and plaintiff-decedent, arguably, was killed as a result. I believe these facts present a jury issue under the Good-Samaritan-duty-to-act principles recited by the Court and that summary judgment was inappropriate. The facts support an inference that TVA, having undertaken to act, failed to act promptly and effectively to get the defect corrected and that TVA’s agents- were simply covering themselves by writing the memo a week earlier. The law requires an owner’s agents who recognized a hazard on job to do more than cover themselves. It requires reasonably effective and prompt action. Thus a disputed factual issue of negligence is raised, and the Seventh Amendment guarantees a plaintiff’s right to a jury trial in federal courts. I therefore dissent from the grant of summary judgment on the issue of TVA’s negligence.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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