Opposition Brief — Atlantic-Richfield Co. v. Cherry

INDEX

STATEMENT OF THE CASE 20.0.0... 1

REPLY TO DEFENDANT'S FIRST

ON PRESENTED FOR REVIEW:

The Action of The Trial Court in Refusing The

Jury’s Initial Conflicting Findings And Return-

ing Them for Further Deliberations Did Not

Deprive Defendant of Trial by Jury under The

Seventh Amendment to The United States Con-

ON GOERS EROS Re Ge ER EE a

REPLY TO DEFENDANT’S SECOND

QUESTION PRESENTED FOR REVIEW:

The Evidence in The Trial Court Did Not Estab-

lish As A Matter of Law That Defendant Owed

No Duty to The Plaintiffs And The Jury Prop-

erly Found That Defendant Negligently Breached

Its Duties to Plaintiffs, Causing Their Fall and

Injuries ............ conc emnnes 15

REPLY TO DEFENDANT’S THIRD

QUESTION PRESENTED FOR REVIEW:

The Defendant Was Not Entitled to A Judgment

Simply Because The Jury Did Not Find It Failed

to Warn Plaintiffs Or Their Employer of Defects

i RF 2 ak 27

REPLY TO DEFENDANT’S FOURTH

QUESTION PRESENTED FOR REVIEW:

The Summary Affirmative of This Case by The

Court of Appeals Was Appropriate And Does

Not Call for This Court’s Exercise of Its Power

icone salt teas aehandadlenineiases 32

SS Spee eee

CERTIFICATE OF SERVICE 2... 34

il Table of Authorities

Cases

Alston v. West, 340 F. 2d 856 (7th Cir., 1965) 11, 13

Atlanta and Gulf Stevedores, Inc. v. Ellerman Lines,

300 US. SU5 (1008) 0... 9

Bayamon Thom McAn, Inc. v. Miranda,

409 F. 2d 968 (5th Cir., 1969) 00. 16

Boeing Co. v. Shipman, 411 F. 2d 365

RECN eaeraecemee se 27, B

C. & R. Transport, Inc. v. Campbell,

406 S.W. 2d 191 (Tex. Sup, 1966)

Cherry v. Atilantic-Richfield Co.,

456 F. 2d 1310 (5th Cir., 1972) 20. 9

City of Beaumont v. Graham, 441 S.W. 829

CHU IG BI on idk nce 8, 19, 24, 25, 27, 9

Delhi-Taylor Oil Corp. v. Henry,

416 S.W. 2d 390 (Tex. Sup., 1967) 0. 9,90

Ellis v. Moore, 401 S.W. 2d 789

CHa, Say BOGE. ..5oscien cect ntotans.. tae 31

Fort Worth & Denver Ry. Co. v. oe

216 F. 2d 790 (5th Cir., 1954) . eo

Gebhardt v. Wilson Freight Wirecideis Co,

348 F. 2d 129 (Sth Cir., 1965)! oo. 16

Gulf Oil Corp. v. Bivins, 276 F. 2d 753 (5th Cir.,

1960) cert. denied 364 U.S. 835 0a. 29, 30

Halepeska v. Callihan Interests, Inc., 371 S.W. 2d 368

Cees TA Se eh i 18, 19, 26, 2

Hammond v. City of El Dorado Springs,

242 S.W. 2d 479 (Mo. Sup., 1951) ...... scxdss toute I

Hernandez v. Employers Mut. Liab. Ins. Co.,

346 F. 2d 154 (5th Cir, 1965) cece 16

Hommel v. Jackson-Atlantic, Inc.,

456 ¥. 3a S07 (Gt Cie, 1971) .............:...... cee

igi et

ean

Table of Authorities — (Continued) iii

Page

Indamer Corp. v. Crandon, 217 F. 2d 391 es

MIN SE saci pesismcenepecnyrnvnncdsvedbcics en 16

Kiger v. Terminal R. Ass’n. of St. Louis,

(Mo. Sup., ERE OSS eC On 20

Martin v. Gulf Shares Utilities Co.,

UU, ON Oe I ay DD oocesessscctcrscscccensnceesrcssesncsceene 11

McCarthy v. Morrison, 468 S.W. 2d 350

og 2 ae 15

McVey v. Phillips Petroleum Co.,

5 EE _ 5s SA panne nnea Ce 10

Nordmann v. National Hotel Co.,

A&B eee ena 11-13

Pruett v. Marshall, 283 F. 2d 436

I a ct 16, 17

Seaboard Air Line R. Co. v. Horowitz,

a7 ©. 28 Taw Cee Coe, TO) oc... 17

Smith v. Henger, 226 S.W. 2d 425

(Geach te ee 19, 20, 26 29

Travelers Ins. Co. v. Lopes gota 2d 784

PS WN i Be ee ee Ph a 15

Truitt v. Travelers Ins. Co., 175 F. Supp., 67

(S.D., Tex., 1959) aff’d 280 F. 2d 784

SRA OES aOR ee eee ee 14

Whitman v. Pitrie, 220 F. 2d 914

ES NO ek a ae aoa ee 17

Wood v. Kane Boiler Works,

238 S.W. 2d 172 (Tex. Sup. 1951) 26

Wright v. Kroeger Corp., 422 F. 2d 176

(5th Cir., 1970)

Table of Authorities — (Continued)

United States Constitution

Texts and Articles

ee dit Coin

Lipscomb, Special Verdicts under the Federal

Rules, 25 Wash. Law Q. 185 (1940) 20...

5A Moore, Federal Practice (2d Ed., 1971) 0000...

In the

Supreme Court of the United States

OCTOBER TERM, 1972

No. 71 - 1662

ATLANTIC-RICHFIELD COMPANY,

Petitioner,

v.

Drew CHERRY and Forrest MULLICAN,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondents, Drew Cherry and Forrest Mullican, respect-

fully submit that for the reasons set forth herein, the Peti-

tion for Writ of Certiorari should be denied.

STATEMENT OF THE CASE

Petitioner’s “Statement” does not comply with this Court’s

Rule 23, subdivision (e) and does not contain all that is

material to the consideration of the questions presented.

Therefore, Respondents make the following statement of the

case.

Petitioner was the defendant, and Respondents were the

plaintiffs in the trial court. The parties will be referred to

herein by their names or their trial court designations.

2

On August 5, 1968, plaintiffs, Drew Cherry and Forrest

Mullican, were employees of Ellerbee Brothers, a stec] plate

construction company in Port Arthur, Texas (R. 224, 353

354). Plaintiffs and a third man, Benny Harvey, were re

moving plates from the roof of storage tank 521 at defend.

ant’s refinery in Jefferson County, Texas (R. 169, 175, 177.

180, 224).

Suddenly the center ring girder (also called the circ

beam) above one of the tank columns gave way, the storage

tank roof collapsed, and plaintiffs fell over 40 feet to the

tank’s floor (R. 170, 180, 224). There was no warning that

the roof was about to collapse (R. 180, 228).

Plaintiffs were both injured in this fall, Forrest Mullican

being the more seriously injured. He was hospitalized over

two months and he is considered to be permanently dis.

abled to do heavy physical work and has suffered and will

continue to suffer physical pain and mental anguish (R. 308,

311-314, 317-321, 470, 481-485).

Storage tank 521 was owned by defendant and was on its

premises. It was built in 1923 (R. 161, 162). Apparently

no work, maintenance, or repair had been done on it prior to

July and August of 1968 (R. 291). About 3 or 4 years prior

to the occurrence made the basis of this suit, defendant had

determined that “something” was wrong with tank 521 and

that it had buckles in the roof (R. 378, 411). No repairs

were made then for economic reasons (R. 412). During this

3 or 4 year period, and until the work of removing the tank

‘ roof began, in which plaintiffs were engaged at the time of

a

their fall, defendant had prohibited anyone from going on

top of this tank (R. 379, 380, 411).

Prior to the beginning of the work on tank 521 by plain-

tiffs’ employer, two inspections of the upper inside of the

roof and inner roof supports of tank 521 were made by Rol-

linson, defendant’s mechanical inspector, to determine what

repairs were necessary (R. 163, 278-281, 290, 376, 377, 384,

387). Rollinson was a general inspector for the whole plant

to see what repairs or replacements had to be made (R. 375,

376). In July and August, 1968, Rollinson was the only

full-time hourly employee performing this type of general

inspection work for defendant (R. 375, 408, 409) .

On his first inspection, from the floor of tank 521, Rol-

linson could not get enough information to decide every-

thing that had to be done (R. 389, 390, 413). However, he

was able to see some warped rafters, so he advised his super-

visor and Ellerbee Brothers was hired (R. 172, 286, 287).

Thereafter, a rolling scaffold was erected so that Rollinson

could get right up at the inside top of the tank’s roof and

reach up and check the rafters, ‘crown, and circle girder or

beam (R. 287-289). These were about two feet above his

head while he was on the rolling scaffold (R. 288). He had

a flashlight and calipers with him on the scaffold and was

up there alone (R. 189, 218, 295, 296, 317, 318). Rollinson

directed where the rolling scaffold was to be moved so he

could inspect the various points he wanted to inspect of the

inside top of the tank and the inner roof supports (R. 189).

3

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4

In this inspection, Rollinson found bent, warped rafter

(R. 286, 392). These were not in the area where the mo

collapsed (R. 190, 191). He found that the girders were aj

right and that no replacements would be necessary on the

center circle ring beam or girder (R. 291, 315). He did not

check every place for needed repairs, or replacement of bolts,

he only “spot-checked” (R. 392, 395). His primary atten.

tion was to those areas of the roof that had buckles and

sways in them and the rafters (R. 414). The buckles in the

roof were on the outer perimeter of the tank (R. 446, 447),

while the circle beam or girder where the collapse occurral

is in the middle of the tank (R. 387, 388).

As a result of this second, close-up inspection of the upper

inside top of tank 521, Rollinson found some badly corroded

nuts and bolts (R. 392, 399). This condition was just here

and there (R. 290). However, the only place he specifically

named where he did find bad bolts was where the rafters

tied into the outer shell of the tank (R. 289, 416), while

the circle beam or girder is in the middle of the tank’s sup-

ports (R. 387, 388). Following this close-up inspection, Rol-

linson either made no statement at all to Ellerbee Brother

personnel about the condition of whatever nuts and bolts

he may have observed (R. 217, 218, 270, 397, 448, 449), or

only advised them that some, unspecified bolts might have

to be replaced as the work progressed (R. 398, 448, 449).

After defendant’s second, close-up inspection, work by Eller-

bee Brothers personnel vegan with the removal of the roof

in plates (R. 188, 436).

all

5

The contract between defendant and Ellerbee Brothers,

plaintiffs’ employer, did not call for either complete, general

repairs or specific repairs. Instead it provided for defendant

to direct what repairs as were necessary (R. 27; Def. Ex.

No, 1, R. 453), and that was the purpose of Rollinson’s in-

spections of the tank (R. 13, 25, 163, 164, 290).

As plaintiffs were working on August 5, 1968, the center

circle ring beam or girder and the floor-to-roof column to

which it was connected were beneath them and the roof

and could not be seen (R. 118, 230, 445).

Ordinarily, the points on a storage tank roof directly over

these floor-to-roof columns would be considered the safest

places to be on the roof because of the support (R. 192, 193,

49, 450), and that would apply to tank 521 as well as to

any other tank (R. 450). However, it was at one such point,

directly over one of these columns that the roof on this tank

collapsed (R. 200, 201, 204), following Rollinson’s second,

dose-up inspection of the upper roof supports of this tank

(R. 188, 246).

Following plaintiffs’ fall, another examination of the in-

side of the tank by defendant’s superintendent of safety

revealed that many of the nuts on the bolts in the rafters

and in the circular girders supporting the rafters were cor-

roded away (R. 172).

Suit was filed in the United States District Court in

Beaumont, Texas, contending that the occurrence in ques-

tion and plaintiffs’ injuries were caused by defendant’s neg-

ligence. Texas Employers’ Insurance Association intervened

i

to recover payments made to plaintiffs and medical expenses

paid under the Workmen’s Compensation Law of Tex

The trial of the case was to a jury. During the course ¢

the trial, failed to make or renew a motion for directed yer.

dict at the close of all the evidence (R. 485).

Following the presentation of the evidence, the jury found

that defendant was negligent, first, in failing to provide

plaintiffs with a reasonavly safe place in which to work, and

second, in failing to adequately inspect the storage tank in

question for dangerous conditions which were known, o

should have been known in the exercise of ordinary car,

to the defendant, and which were not open and obvious tp

plaintiffs or their employer. The jury also found that de

fendant’s negligence was a proximate cause of plaintiffs’ fal

and their injuries. Finally, the jury awarded the plaintif,

Drew Cherry, $10,000 in damages, and the plaintiff, Forrest

Mullican, $150,000 in damages (R. 527).

The jury initially answered “Yes” to defendant’s issue,

nected with defects im the premises which plaintiffs’ a.

ployer had undertaken to repair (R. 516). The trial cout

considered that this initial finding was in conflict with the

remainder of the verdict and the Court’s instructions, par

ticularly the awarding of damages. The trial court gave the

(R. 516-518, 524). Following further deliberation, the jy

returned their final verdict with the defendant's issue a-

swered “No” and the remainder of their original answes

unchanged (R. 527).

7

Judgment was entered for the plaintiffs on the jury’s final

verdict. The Court of Appeals for the Fifth Circuit affirmed

that judgment.

ARGUMENT

REPLY TO DEFENDANT'S FIRST QUESTION

PRESENTED FOR REVIEW

THE ACTION OF THE TRIAL IN REFUSING THE

JURY'S INITIAL CONFLICTING FINDINGS AND RE.

mately connected with defects in the premises which

their employer, Ellerbee Brothers, Inc. had undertaken

to repair?”

This is the only defense relied on by defendant. And, in

the first sentence of its argument under question number

one, at p. 4 of its petition, defendant makes the statement

that this issue was founded on the “well settled” law in

Temas that an owner or occupier of premises has no duty to

amployers of an independent contractor regarding defects

in the premises which the contractor has undertaken to re-

paid. Defendant is in substantial error on this significant

point.

in fact, the Texas Supreme Court has never applied such

a exception to the positive duties owed by the owner or

8

occupier of premises to its invitees, including employees of

contractors such as plaintiffs herein.

This manifest error is exposed by the fact that the only

case defendant cites for the proposition stated is City g

Beaumont v. Graham, 441 S.W. 2d 829 (Tex. Sup. 1969),

In the Graham case, the plaintiffs prevailed in the Tem

Supreme Court against contentions similar to those ad.

vanced by defendant here and despite a jury finding that:

“* * * at the time of the accident, Graham ‘was per.

forming work that was intimately connected with the

work contracted to be performed by (Graham’s en.

ployer)’* * *” 441 S.W. 2d at p. 835.

In the Graham case the Texas Supreme Court did not

apply the exception relied on by defendant (411 S.W. 2

at pp. 834, 835) and has never applied it to deny recovery

to employees of contractors such as plaintiffs in this case

Yet, this was the only issue submitted as a defense to the

jury.

Under the trial court’s instructions (Appendix B), issue

no. 3 was “defendant’s issue”, despite its lack of legal effect.

The initial instructions of the trial court unequivocally told

the jury that they must answer defendant’s issue no. 3

“No” in order to reach the question of plaintiff's damages,

stating:

“* * * (if) you find any of these acts or omissions of

negligence against the defendant in favor of the plain-

tiffs and you furthermore find that the work which the

plaintiffs’ injuries arose from were not intimately con-

nected with the defect in the premises which their em-

ployer, Ellerbee Brothers had undertaken to repai,

9

then you will find in favor of the plaintiffs and give

your attention to the issues of damages.” (Emphasis

Added).

At p. 11 of its petition, defendant attempts to brand as a

“misstatement of the record” the correct conclusion of the

Court of Appeals that the above instruction explicitly

charged the jury not to reach the issue of damages if they

found plaintiffs’ injuries arose from work intimately con-

nected with the defect the workmen were employed to

remedy. Cherry v. Atlantic-Richfield Co., 456 F. 2d 1310

(5th Cir., 1972). Defendant’s characterization of the Fifth

Circuit's statement is achieved by the simple expedient of

ignoring the above-quoted instruction to which the Fifth

Circuit referred, and quoting another portion of the trial

court’s instructions. Petition at p. 11.

This clutching at straws by defendant is further exempli-

fied by the “headnote” quotations made at p. 9 of its peti-

tion, rather than using the actual language employed by

the courts in the cases there cited.

Likewise, plaintiffs submit that the rule defendant seeks

to impose here, regarding analysis and attempted reconcilia-

tion of conflicts in jury’s verdicts, is simply not intended for

cases such as this one. The rule, stated by this Court in

Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, 369

U.S. 355 (1962) at p. 364, is one intended to prevent appel-

late redetermination of facts found by the jury and the

upsetting of valid judgments based on jury findings under

the guise of hypertechnical, strained “conflicts”. 369 U.S. at

10

Pp. 358, 359. That rule does not apply to this case involving

a real, irreconcilable conflict.

Defendant here is not in the position of trying to prote¢

a judgment against a claim that the jury’s verdict contain

a conflict and will not support the judgment entered, Ip.

stead, defendant is urging this Court to reexamine ani

redetermine the facts and hold that the jury’s final verdic:

is unavailing. The action sought by defendant is not cop.

sonant with the provisions of the Seventh Amendment,

Defendant also seeks to fragment the trial court’s charge

and avoid the rule that a special verdict must be construed

in light of the surrounding circumstances, including the in

structions of the court. McVey v. Phillips Petroleum Co,

288 F. 2d 53 (5th Cir., 1961) at p. 59; Wright v. Kroeger

Corp., 422 F. 2d 176 (5th Cir., 1970) at p. 178; 9 Wright and

Miller, Federal Practice and Procedure (1971) Sec. 2510 at

p. 516.

As noted above, the trial court explicitly instructed the

jury that they had to answer defendant’s “intimately con-

nected” issue, no. 3 “No” before reaching and awanding

' damages in issue no. 4. In addition, as shown in Appendix B,

sider the charge as a whole”; that issue no. 3 was the “issue

of the defendant”; that if the jury answered issue no. 3

“Yes”, this would indicate that they “find in favor of the de

fendant and against the plaintiffs”; and that defendant “s

liable to plaintiffs herein, if and only if’ and then outlining

11

conditions paralleling issues nos. 1(a), (b), and (c), and

Section 343, Restatement of Torts.

Obviously then, the initial “Yes” answer by the jury to

issue no. 3 conflicted directly and irreconcilably with the

award of damages im answer to issue no. 4 and the court’s

instructions with reference thereto.

“* * * The jury must have been confused. Had it

thought that its answer to Question No. 3 provided a

complete defense, as defendant suggests, it would not

have awarded plaintiff * * * damages in Question No.

4, It thus appears that the jury’s findings are irrecon-

cilable.” Wright v. Kroeger Corp., cited above, 422 F.

2d at p. 178.

See also: Nordmann v. National Hotel Co., 425 F. 2d 1103

(5th Cir., 1970) at pp. 1105, 1106; Martin v. Gulf States

Utilities Co., 344 F. 2d 34 (5th Cir., 1965) at p. 37; Alston v.

West, 340 F. 2d 856 (7th Cir., 1965) at pp. 857, 858; 9 Wright

and Miller, cited above, Sec. 2510 at pp. 517, 518.

Upon determining the presence of this irreconcilable con-

flict in the jury’s imitial findings, the trial court advised the

jury of the conflict. Then, the court further instructed them

to return to their deliberations and resolve the conflict,

aither by deleting the damages awarded in answer to no. 4,

or by changing their answers to nos. 1(a), or (b), or by

changing their answer to defendant’s issue no. 3. The jury

chose the latter as representing their true and final verdict

12

on the evidence and plaintiffs submit that response was

correct.

Rule 49(a), Federal Rules of Civil Procedure, places no

limitation on the trial court’s discretion in the event of

conflict in the jury’s answers. Since the facts are to be found

by the jury, it seems not only logical, but practical to pemit

the jury to continue their deliberations and resolve thar

own conflict. The alternatives, engendering a new trial, with

a new jury, with additional time and expense, are apper.

ently what defendant seeks here. The action of the tral

court and the jury, leading to the jury’s resolution of its

own conflicting findings, clearly did not violate defendant's

Seventh Amendment rights. Plaintiffs submit that defend.

ant’s position is simply without foundation.

In Nordmann v. National Hotel Co., cited above, the jury

was asked the following questions, among others:

“1. Was the Jung Hotel, through its employees,

agents and/or representatives negligent? * * *

“2. If so, was this negligence a proximate cause of

the injuries sustained by the plaintiffs? * * *

“3. Was the plaintiff, Mrs. Mary LeBlanc Nordmann,

guilty of contributory negligence? * * *

*

* * * *

“6. What is the total amount of damages to which

the plaintiff, Mrs. Mary LeBlanc Nordmann, is entitled

to recover? * * *

“7, Was the plaintiff, Ervin A. Nordmann, guilty of

contributory negligence? * * *

* * ca * *

10. What is the total amount of damages to which

the plaintiff, Ervin A. Nordmann, is entitled to recover?

* * *” 495 F. 2d at p. 1105.

13

The jury first returned a verdict with No. 1 answered

“No”, No. 2 unanswered, No. 3 answered “No”, and No. 7

answered “No”. In addition, however, the jury had found

damages of $16,000 in answer to No. 6 and $5,000 in answer

to No. 10. At p. 1106.

The trial court considered these findings to constitute a

conflict and, as here, he advised the jury of the verdict’s

inconsistency and sent them back to reconsider it. The jury

then returned their final verdict, answering No. 1 “Yes”,

No, 2 “Yes”, and leaving their findings of no contributory

negligence (Nos. 3 and 7) and damages (Nos. 6 and 10)

unchanged. At p. 1105. As a result, judgment for the plain-

tiffs was entered. The Fifth Circuit Court of Appeals af-

firmed the case, treating the damages issues as “in effect”

the general verdict. 425 F. 2d at p. 1106.

The Court of Appeals noted that in the Nordmann case,

as in this case:

“* * * The positive answers of the jurors when indi-

vidually polled leave no doubt as to their intention or

genuine verdict.” 425 F. 2d at p. 1106.

In Alston v. West, cited above, 340 F. 2d 856, the Sev-

enth Circuit Court of Appeals approved the trial court’s

action in refusing an initial conflicting verdict » and resub-

mitting the case to the jury.

“* * * We think the trial court properly refused to

accept the first verdict which was directly contrary to

the instructions which had been given. Furthermore, the

court properly exercised its discretion in resubmitting

the case to the jury.” 340 F. 2d at p. 858. (Emphasis

Added) .

14

In Truitt v. Travelers Ins. Co., 175 F. Supp. 67 (SD,

Tex., 1959), a workmen’s compensation case, the jury was

given a special verdict charge and retired for deliberation

Then:

“* * * The jury requested that the charge on tot!

and partial incapacity be re-read after it had deliberated

for a time. After having the charge re-read to them,

the jury retired. It later returned with an inconsisten

verdict in which it held that total and partial incapacity

had begun on the same date. The court pointed oy

these consistent findings to the jury, instructing then

that total and partial incapacity cannot exist at the

same time, but not re-reading the charge * * *, When

the jury returned again, its foreman posed the follow.

ing question: ‘Your honor, it is the jury’s intent to pay

the plaintiff 301 weeks, $25 at 301 weeks. Now we ar

confused as to how to word that.’ * * *” 175 F. Supp,

at p. 73. (Emphasis Added).

Following some additional discussion with the jury:

“* * * The court then instructed the jury concerning

the way in which the special interrogatories should be

answered in order to achieve the result of finding total

incapacity for 301 weeks and of finding no partial in-

capacity. If its intention was as expressed, the cout

ordered the jury to withdraw and fill in the blanks as

instructed * * *.” At p. 73. (Emphasis Added).

The trial court noted:

“* * * The tendency of a jury to consider broadly the

rights and liabilities of the parties cannot be eliminated,

even in special verdict practice * * *. These supple-

mentary instructions were given within the discretionary

power of the court to assist the jury in expressing its

findings * * *.” At p. 73. (Emphasis Added).

15

The Fifth Circuit Court of Appeals affirmed the Truitt

case and held the trial court’s actions in resubmitting the

special verdict to the jury with the stated instructions was

proper. Travelers Ins. Co. v. Truitt, 280 F. 2d 784 (5th Cir.,

1960) at p. 790. See also: 9 Wright and Miller, cited above,

Sec. 2510 at pp. 517, 518; Lipscomb, Special Verdicts Under

the Federal Rules, 25 Wash. Law Q. 185 (1940) at p. 212.

In addition, the jury themselves set aside and resolved

their initial conflicting verdict and the second, final verdict

is the only legal verdict in this case. See, e.g., McCarthy v.

Morrison, 468 S.W. 2d 350 (Tex. Sup. 1971) at p. 351.

Accordingly, even without giving consideration to the

absence of legal effect or the limited legal effect an un-

changed affirmative answer to issue no. 3 would have had

for defendant, discussed in detail in reply to defendant’s

question number two, plaintiffs respectfully submit that

defendant’s claim of error in its question number one to this

Court is unfounded and does not form any basis for review

here of the trial court’s judgment for them as affirmed by

the Court of Appeals.

REPLY TO DEFENDANT’S SECOND

QUESTION PRESENTED FOR REVIEW

THE EVIDENCE IN THE TRIAL COURT DID NOT

ESTABLISH AS A MATTER OF LAW THAT DEFEND.

ANT OWED NO DUTY TO THE PLAINTIFFS AND THE

JURY PROPERLY FOUND THAT DEFENDANT NEGLI.

GENTLY BREACHED ITS DUTIES TO PLAINTIFFS,

CAUSING THEIR FALL AND IN .

At no point in its petition has defendant advised this

Court that it did not move for a directed verdict at the

dose of all the evidence in the trial court. See Appendix A.

16

Defendant thereby waived a previous, unspecified “mo.

tion” made prior to the presentation of its case and for.

closed its right of judgment notwithstanding the evidence.

Rule 50, Federal Rules of Civil Procodure; 5A Moore, Fed.

eral Practice (2d Ed., 1971), Para 50.05 at pp. 2341, 2349,

Hernandez v. Employers Mut. Liab. Ins. Co., 346 F. 2d 154

(5th Cir., 1965) at p. 155; Bayamon Thom McAn Ine, »,

Miranda, 409 F. 2d 968 (5th Cir., 1969) at p. 971; Indamer

Corp. v. Crandon, 217 F. 2d 391 (5th Cir., 1954) at p, 393,

The failure of defendant to move for a directed verdict

at the close of all the evidence has another ramification,

“From the beginning of the Federal Rules of Civil

Procedure, the courts have been consistent in holding

that the appellate court cannot review the sufficiency

of the evidence in the absence of an unwaived motion

for a directed verdict * * *.” 5A Moore, cited above,

Para. 50.05 at p. 2343, and cases cited in footnote 7 at

pp. 2343-2345.

See also: Pruett v. Marshall, 283 F. 2d 436 (5th Cir., 1960)

at p. 488; Gebhardt v. Wilson Freight Forwarding Co., 348

F. 2d 129 (5th Cir., 1965) at p. 132; Hommel v. Jackson-

Atlantic, Inc., 438 F. 2d 307 (5th Cir., 1971) at p. 309. -

Because defendant failed to properly or adequately chal-

lenge the legal sufficiency of the evidence on which the

jury’s verdict and trial court’s judgment are founded, it

could not do so before the Court of Appeals and cannot do

so here.

“* * * the entire argument, addressed as it is to the

absence of a duty toward appellee which would support

the issues of negligence, is in fact an argument on the

17

insufficiency of the evidence to sustain the verdict, and

that, because, no motion having been made for a di-

rected verdict, the specification under settled law pre-

sents nothing for our consideration * * *.” Fort Worth

& Denver Ry. Co. v. Thompson, 216 F. 2d 790 (5th

Cir., 1954) at pp. 792, 793. (Emphasis Added).

See also: Amendment VII, U. S. Constitution; Whitman v.

Pitrie, 220 F. 2d 914 (5th Cir., 1955) at p. 918; Seaboard

Air Line R. Co. v. Horowitz, 277 F. 2d 738 (5th Cir., 1960) ;

Pruett v. Marshall, cited above, 283 F. 2d at p. 438.

Defendant's complete absence of candor in failing to dis-

close this meaningful procedural element is complemented

by its erroneous characterizations of the state of the evi-

dence in this case and the state of the law of premises

liability in Texas.

For example, at p. 13 of its petition defendant seeks to

off-handedly and derogatorily describe as the plaintiffs’

“only evidence” regarding the cause of the collapse of the

roof on defendant’s storage tank, a damaging series of un-

contradicted admissions against interest by defendant’s own

superintendent of safety in his official report of this incident.

Appendix C.

For further example, defendant erroneously describes the

testimony of its witness, Parker, on what work was to be

performed by plaintiffs’ employer as “undisputed”. On the

contrary, Parker’s testimony, a portion of which defendant

has included as Appendix VI to its petition, was disputed

on every hand —by the contract between defendant and

plaintiffs’ employer, by the defendant’s answers to inter-

a ae

rogatories submitted by plaintiffs, by testimony presenta;

on behalf of plaintiffs, and by defendant’s own witness

These matters are set forth in Appendix C hereto,

Probably at the root of all this however is defendant

continuing reliance on a “matter of law”, an “exception” jp

the doctrine of permises liability, which defendant mistak.

enly believes to be applicable in Texas and applicable to ths

case. Defendant is wrong on both points.

In its argument, defendant erroneously seeks to limit the

duties owned by the owner or occupier of premises to ap.

ployees of contractors to simply warning of hidden of ip

contractors performing construction or other work on

premises * * * ” Smith v. Henger, 226 S.W. 2d 425

Sup., 1950) at p. 431. (Emphasis Added)

See also: Restatement of Torts 2d, Sec. 343, and especially

subsection (c) and comment b, at p. 216.

Defendant's reliance is mistakenly placed on City of Beau-

mont v. Graham, cited above. As previously pointed out in

reply to question number one, the Graham case was won by |

the plaintiffs in the Texas Supreme Court and defendant’s

“exception” was not applied. Further, the Texas Supreme

Court refuted defendant’s attempt to stress only the sec-

ondary, passive warning aspect of the owner or occupiers’

duties to contractor employees by emphasizing the duty of

elimination of unreasonably dangerous conditions. 441 S.W.

Defendant also quotes a portion of an American Law Re-

ports, Second Series, annotation as the foundation of its

That is not the law of Texas. Halepeska, cited above;

Smith, cited above; Graham, cited above. And, as much as

defendant wants to win this case, it cannot cite or quote on

Texas case actually holding as it wants this Court to hod

The obvious reason no Texas case has applied defendany;

“exception” is that in Texas the active duties of inspection,

discovery, amd correction of hidden defects are impos

on the owner or occupier, not on the contractor. See cass

cited and quoted above.

Defendant also relies heavily on a Missouri case, Ham.

mond v. City of El Dorado Springs, 242 S.W. 2d 479 (Mo

Sup. 1951). However, that case shows clearly that Missouri

rule is not consistent with Texas law. There the active dut

ies of inspection and repairs were placed on the contracter,

not the owner or occupier. 242 S.W. 2d at pp. 482, 483. In

deed, in a case such as this one, in which the duty to m

sonably inspect was on the defendant, the Missouri Supreme

Court readily distinguished the Hammond case as:

“* * * so different from the one before us that it

should be obvious the case has no application here”

Kiger v. Terminal R. Ass’n of St. Louis, 311 S.W. 245

(Mo. Sup., 1958) at p. 9.

Here, realizing it had the duty of inspection under Texs

law, defendant undertook not one but two inspections o

storage tank 521 prior to plaintiffs’ employer beginning

work. These were made by its only full-time inspector, Ro-

linson.

Therefore, plaintiffs were entitled to assume defendant

had discharged its duty to use reasonable care to prevent

injury from hidden dangers. Smith, cited above, 226 SW.

2d at p. 434.

21

However, defendant negligently failed to satisfy its clear

duties to reasonably inspect, to discover hidden dangerous

conditions, and provide plaintiffs a reasonably safe place in

which to work. The jury so found.

As pointed out in Appendix C hereto, the evidence here-

in shows:

1. As to the scope of the work to be performed by plain-

tifis’ employer, the contract involved im this case did not

call for complete, general, or specific repairs, but provides

“Furnish supervision, labor, transportation, tools, equip-

ment and material to remove door sheets and make

necessary repairs as directed to our 521 tank.” (Em-

phasis Added).

2. Defendant was to determine what repairs were “nec-

esary” through inspections by its inspector, Rollinson.

3. Defendant would “direct” what repairs were to be made

by plaintiffs’ employer.

4. The initial, motivating factor to repair tank 521 arose

from its roof buckling due to bent and warped rafters, not

located in the vicinity of the roof’s collapse by which plain-

tifis were injured.

5. The roof’s collapse was due to the failure of the center

ting girder (not a rafter) where it connected to a floor-to-

roof column, near the middle of the tank.

“* * * Suddenly the center ring girder just above one

of the tank columns came loose where it was bolted

together by bolts through a short section of the plate,

The circular girder was an inner support for the roof

rafters which were supporting the plates the men wer

standing on * * *.” (Emphasis Added).

7. As a result of his two inspections of the inner supports

outer shell of the tank and made no specific mention of “bad

bolts” at the middle of the tank where the failure occurred.

8. As a result of his two inspections, one of which was on

a rolling scaffold which put him within two feet of the in.

side of the tank’s 42-foot ceiling, defendant’s inspector

Rollinson contemplated no repairs to the girder that failed,

to any of the girders in the tank, or to the column at which

the failure occurred.

9. Despite the generalities in that portion of his testimony

quoted in Appendix VI to defendant’s petition, defendant’s

witness, Parker, admitted he thought the floor-to-roof ol-

umns were in reasonably good shape.

10. Defendant’s witness, Parker admitted that the point

where the roof of tank 521 collapsed, over the center ring

girder and a floor-to-roof column should have been the safest

place on the roof of the tank.

11. Defendant's witness, Parker, admitted that had he

known of this tank roof was going to collapse as a result of

the failure of one of its structural supports, he would never

have allowed plaintiffs to go on the roof.

Obviously then, the testimony quoted by defendant in its

Appendix VI was not the “only testimony” on the nature

of the work to be done by plaintiffs’ employer nor was it

“undisputed”. Defendant’s claims for Parker's testimony

are erroneous. Petition at p. 13, 15-17.

On the basis of Rollinson’s testimony, noted above, Park-

er's information as to the status of the tank and the work

to be performed did not pertain to any repairs or replace-

ments on the center ring girder which failed, or to the tank

column where the failure occurred. So, there had been no

undertaking by plaintiffs’ employer to repair the defect

which gave rise to the roof’s collapse and none was antic-

ipated under the contract involved.

At no point in his testimony did Rollinson mention any

anticipated repairs to the floor-to-roof columns even though

he had checked this. Defendant’s witness Parker admitted

that he thought these roof supports were in reasonably good

shape even after talking with Rollinson.

In other words, the evidence from defendant’s own wit-

nesses demonstrates that it was not until after the center

ring girder gave way and plaintiffs fell that anyone expected

that it would be necessary to make “repairs as directed” to

that girder where it connected to the tank column. But it

was defendant’s duty, under the Texas law from which it

seeks to escape, to discover by adequate inspection th

ant’s “exception” does not apply to this case.

An additional factor exists in this case which denm.

strates the inapplicability of defendant’s “exception”. The

Graham case states that the contract involved is of “control.

ling importance” in determining whether a case falls within

the “exception”. 441 S.W. 2d at p. 834. Yet defendant has

completely failed to apprise this Court of the contract in.

volved here.

As noted above, the contract in this case called for neither

general nor specific repairs to tank 521. Instead, plaintiffy’

employer was to be “directed” by defendant as to what re

pairs would be necessary and no repairs had been “directed”

as to the girder that failed or the column at which point the

failure occurred.

In the Graham case, the Texas Supreme Court stated:

“* * * Assuming that we would apply the exception,

quoted above, to risks only intimately connected with

defects which the contractor has undertaken to repair,

as there stated, that obviously was not what the jury

found * * *. The finding is of an undisputed fact.

The work being performed — sandblasting and pamt-

ing — was expressly required by the contract. In the

absence of a contractual provision for complete gen-

eral repairs as in Hammond, supra, or requiring Texas

Tower to replace the bracket assemblies (which pulled

loose causing Graham’s fall) we are unwilling to hold,

as a matter of law, that the contract required Texas

Tower to replace such assemblies and to repair the

corroded tank wall beneath such assemblies.” 441 S.W.

2d at p. 835. (Court’s and Added Emphasis).

25

The contract in Graham did not provide expressly for re-

of the bracket assemblies, but did call for the re-

placement of the “spider rods” held in place by the bracket

assemblies. Still, the Court refused to apply the “exception”

relied on by defendant here. And, the Court did not make

a direct statement as to whether it would apply the “ex-

ception” in any case.

At the time the plaintiffs’ fall, their employer had not

undertaken repair of any defect in the center ring girder or

the tank column to which it connected. Plaintiffs’ employer

had not been “directed” to any “necessary repairs” to that

portion of tank 521, and that is all that the contract in this

case provided for.

The close-up, but inadequate second inspection by de-

fendant’s inspector, Rollinson, had failed to provide the in-

formation it should have. He failed to put himself in a posi-

tion whereby defendant could either eliminate the danger-

ous condition, warn of the dangerous condition, or “direct”

plaintiffs’ employer concerning the defect found later. In-

stead, it was not until the third inspection, by defendant’s

superintendent of safety, Britt, and after plaintiffs’ fall, that

defendant finally discovered the defect which caused the

rwof’s collapse—which Rollinson had been within two feet

Z :

At the time of the roof’s collapse, plaintiffs were removing

roof plates and no work had commenced on the supporting

structures beneath the roof. That factor distinguishes this

case from the comment in the other Texas case cited by

26

defendant, Wood v. Kane Boiler Works, 238 S.W. 24 1p

(Tex. Sup. 1951), where the Texas Court again did not ap.

ply defendant’s “exception”, noting it was limited in othe

states to those cases in which the contractor is to “ingpeg

and repair” (Court’s Emphasis) or in which the contract

is to “repair” and:

“* * * the injury was caused by the very condition

which the plaintiff was employed to correct and ug;

in the act of correcting when injured * * *.” (Citing a

New Jersey case). 238 S.W. 2d at p. 176.” (Emphasis

Added).

Neither situation exists here. The only “exception” de.

fendant has urged to its duties to plaintiffs still does not

apply.

Defendant was under a continuing duty to provide plain.

tiffs a reasonably safe place in which to work. Smith, cited

above, 226 S.W. 2d at p. 431. The jury properly found that

defendant had negligently failed to satisfy that duty, pror-

imately causing p! intiffs’ fall and injuries.

Defendant was under a duty to reasonably inspect its

premises and discover the unreasonably dangerous condi-

tion involved here. Halepeska, cited above, 371 S.W. 2d at

p. 378; Smith, cited above, 226 S.W. 2d at p. 431. The jury

properly found that defendant also failed to satisfy that

duty, proximately causing plaintiffs’ fall and injuries.

Plaintiffs submit that at the least, there was a conflict in

the substantial evidence on these matters which was prop

erly resolved in plaintiffs’ favor and that the trial court's

judgment for them, affirmed by the Court of Appeals, should

27

not be disturbed. Boeing Co. v. Shipman, 411 F. 2d 365 (5th

Cir., 1969) at pp. 374, 375, 377.

The “matter of law” defendant urges in its efforts to avoid

liability is not the law of Texas or the law of this type of

case. Plaintiffs submit that defendant has failed to demon-

strate a reason for this Court to review the judgment herein.

REPLY TO DEFENDANT’S THIRD

QUESTION PRESENTED FOR REVIEW

THE DEFENDANT WAS NOT ENTITLED TO A JUDG-

MENT SIMPLY BECAUSE THE JURY DID NOT FIND IT

FAILED TO WARN PLAINTIFFS OR THEIR EMPLOYER

OF DEFECTS IN THE PREMISES.

Defendant attempts to turn the absence of a jury finding

of “Yes” to issue no. 1(c), the “warning” issue (defend-

ant’s Appendix IV) into a positive finding that defendant

in fact made a warning. Its efforts are unavailing.

The overall evidence in this case indicates that no warn-

ing, and certainly no legally effective warning, was ever

given by defendant’s inspector, Rollinson, or anyone else at

defendant’s plant, to plaintiffs or anyone with their em-

ployer.

It is true the jury did not find that defendant had failed

to warn plaintiffs in this case. But, the “No” answer to the

“waming” issue, no 1(c), certainly does not have the effect

defendant seeks to attach to it. It does not constitute a

finding that the defendant had not failed to warn, it merely

means the jury did not make a finding that defendant did

so fail and does not form the basis for any judgment for

defendant in this case. Graham, cited above, 441 S.W. 2d at

28

p. 835; C. & R. Transport, Inc. v. Campbell, 406 S.W, 24 19)

(Tex. Sup., 1966) at p. 194. a

Under the circumstances evidence herein should bp

viewed:

“* * * in the light and with all reasonable inferences

most favorable to the (plaintiffs) * * * ” Boeing Co »,

Shipman, cited above, 411 F. 2d at p. 374.

However, viewing the evidence in any light it is obvious

that the inadequacy of Rollinson’s inspections failed to put

defendant in the position, where it should have been, s it

could have corrected or warned of the danger which gave

rise to the occurrence in question and plaintiffs’ injuries,

Also, the answer to no. 1(c) was not necessary to sustain

plaintiffs’ cause of action herein despite defendant’s err.

neous assertions in its petition Defendant has mis-read o

mis-interpreted Section 343 of the original Restatement of

Torts, although it is quoted fully at p. 18 of defendant's

petition.

Under Section 343, defendant’s duty to warn is both dis-

junctive and secondary to the defendant’s duty to “make

the condition reasonably safe”. (Emphasis Added). The em-

phasis on active measures as opposed to passive measures,

such as merely warning, is underscored in the current Sec-

tion 343, Restatement of Torts, 2d. See especially subsec-

tion (c) and comment b, at p. 216.

The jury properly found that defendant neyligently failed

to meet its primary duty to make the condition reasonably

safe.

The jury further found that defendant, having under-

taken inspections, negligently failed to meet its duty to ade-

29

quately inspect. Therefore defendant continued to violate

its duties to plaintiffs and negligently prevented the place

in which they were working from being made reasonably

safe and forestalled any warning or knowledge of the specific

danger involved.

«* * * This includes a duty of the occupier to inspect

and to discover dangerous conditions * * * of which he

* * * knows, or (because of his duty to inspect) of

which he should know in the exercise of ordinary care.

If there are dangers which are not open and obvious,

he is under a duty to take such precautions as a reason-

ably prudent person would take to protect his invitees

therefrom * * *.” Halepeska, cited above, 371 S.W. 2d at

p. 878 (Court’s and Added Emphasis) .

Under the Texas law as it applies to the facts of this case,

defendant is liable notwithstanding the state of the “warn-

ing” issue. Halepeska, cited above, 371 S.W. 2d at p. 378;

Smith, cited above, 226 S.W. 2d at p. 431; Graham, cited

above, 441 S.W. 2d at p. 835.

Despite the absence of any effective warning in this case

and the demonstration in the evidence that the inadequacy

of Rollinson’s inspection prevented any warning, defendant

cites and quotes at length from two “warning” cases in its

petition at pp. 17-19.

In both the cases defendant relies on, Gulf Oil Corp. v.

Bivins, 276 F. 2d 753 (5th Cir., 1960), cert. denied 364 U.S.

835, and Delhi-Taylor Oil Corp. v. Henry, 416 S.W. 2d 390

(Tex. Sup. 1967), there was an adequate warning given to

plaintifis employer or supervisor. See 276 F. 2d at pp. 757-759;

416 S.W. 2d at pp. 392, 393. No such warning was given in

this case.

30

Further, defendant persists in ignoring that the critica]

factor present in both Bivins and Delhi-Taylor was that the

warnings given in those cases, and found to be

were of the precise, occurrence-creating danger and had the

effect “to enable (the invitees) to avoid the harm”, Bivins,

cited above, 276 F. 2d at pp. 755, 757; Delhi-Taylor, cited

above, 416 S.W. 2d at pp. 392, 393. That factor is clearly not

present in this case.

Plaintiffs submit that those cases do not fit the facts of

this case and do not control its outcome.

Defendant continues under its question number three, to

assert, without foundation or any reference to the recor

herein, that “even if no warnnig has been made at all, there

would be no liability”. Petition at p. 19. This amazing om.

clusion springs from defendant’s mistaken assertion that one

unreferenced sentence in Bivins concerning the “knowledge

of the danger” by the contractor somehow applies to this

case to relieve it of liability. It does not.

The jury was charged on “open and obvious” and its

findings on that aspect of this case were favorable to plain-

tiffs.

Reference is made to the testimony of plaintiffs’ witnesses,

Harvey and Cherry, and defendant’s witnesses, Rollinson

and Parker, noted above under reply to question number

two, graphically illustrating the absence of knowledge and

appreciation. Appendix C.

31

During the trial, defendant tried repeatedly to inject some

general “knowledge”, about some abstract “danger”, in-

wilved in work on storage tanks in general, and the “possi-

bility” of a roof collapse. But when we get to this tank and

this danger, it is submitted that the record is devoid of any

evidence tending to satisfy the necessary Texas require-

ment that:

“* * * knowledge of the defect is not enough. There

must be knowledge of the danger involved and the ap-

preciation of the danger involved. * * * knowledge and

appreciation of the particular danger involved * * *”

Ellis v. Moore, 401 S.W. 2d 789 (Tex. Sup., 1966) at

p. 793. (Emphasis Added).

This tank roof collapsed at a point over one of the floor-

to-roof columns when the circle ring girder gave way. The

testimony is uncontradicted that such a point, over these

supports, on the roof of storage tanks in general and tank

521 in particular should have been the safest place on the

entire roof. This was admitted by defendant’s witness, Park-

er. Appendix C.

Therefore, defendant’s own witnesses have refuted its un-

founded assertions concerning “knowledge of the danger”’.

The jury and the trial court decided that defendant had

negligently failed to satisfy its primary duties to the plain-

tifis. The Court of Appeals has affirmed. Plaintiffs submit

that no basis has been demonstrated by defendant for dis-

turbing the judgment for plaintiffs.

32

REPLY TO DEFENDANT'S FOURTH

QUESTION PRESENTED FOR REVIEW

THE SUMMARY AFFIRMANCE OF THIS CASE py

Defendant complains of the summary disposition by the

Fifth Circuit Court of Appeals of its second and third ques.

tions urged here. What defendant has consistently refused

to admit, before the Court of Appeals and here, is its failure

to move for a directed verdict at the close of all the evidence.

Appendix A.

As discussed above in reply to defendant’s question nun.

ber two, this significant failure waives defendant's previous

motion, forecloses its right of judgment notwithstanding the

verdict, and precludes appellate review of the legal sufficien-

cy of the evidence. See texts and cases cited above.

Yet, before the Court of Appeals, defendant predicated

questions urged here on the assertion that the trial cout

erred in denying its waived “motion for instructed verdict

and/or for judgment non obstante veredicto”! It should

come as no surprise to defendant that the Court of Appeals

discovered its complete lack of candor and determined such

points were without merit.

First, as shown in the discussions under the replies to

questions numbers one and two herein, the only defense

advanced is one never applied by the Supreme Court of

Texas and not applicable to the facts of this case anyway.

33

Second, defendant failed to preserve the procedural basis

by which it has attempted to urge trial court error by not

timely moving for a directed verdict.

The salutary effects:of the Fifth Circuit’s Rule 21, per-

mitting the summary disposition of non-meritorious points

and points not properly preserved for review are clearly

evidenced in this case.

The failure of defendant to preserve the procedural basis

of its appeal, including the question of the legal sufficiency

of the evidence, and the untenability of its attempt to

shoe-horn this case into an inapplicable “exception” there-

by indicating that no error of law appears herein, demon-

strate that the Fifth Circuit was correct in its summary dis-

position and affirmance of this case.

Plaintiffs submit that the Fifth Circuit Court of Appeals

did not depart from the accepted and usual course of judi-

cial procedures in affirming this case under its Rule 21, and

that no occasion exists under this Court’s Rule 19 for grant-

ing review on writ of certiorari.

CONCLUSION

It is respectfully submitted that no sound reason exists

for grant of certiorari in this case, and that the Petition

should be, in all things, denied.

Respectfully submitted,

MakcuH H. Corriexp,

Jor H. ToNnAHILL,

Tonahill Building,

34

CERTIFICATE OF SERVICE

I hereby certify that I am a member of the United Stat,

Supreme Court bar and the counsel for the Re

spondents herein and that, on the/77Aday of July, 197,

three (3) copies of the above and foregoing Brief in 0p

position to Petition for Writ of Certiorari were served, pw.

suant to United States Supreme Court Rule 33, Para 1,

by depositing same in the United States post office, Jasper,

Texas, with first class postage prepaid, properly addressed

to the post office address of Petitioner’s counsel of reconi,

Mr. Jep S. Fuller, Fuller, Fuller & McPherson, 3800 Park

A-1

APPENDIX A

ABSENCE OF MOTION FOR DIRECTED VERDICT

BY DEFENDANT AT THE CLOSE OF ALL THE EVI-

DENCE:

“THE COURT: Do you have anything further?

“MR. COFFIELD: No, Your Honor, with that the

Plaintiff closes.

“THE COURT: Would you give him a copy of the

B-1

APPENDIX B

- JURY CHARGE AND INSTRUCTIONS: connie

«* * * You are not to single out any one instruction

of this charge alone as stating the law, but you must

condiser the charge as a whole. * * * (R. 487).

« * * * the Court would charge you that if you find

from a preponderance of the evidence that the defend-

ant, the Atlantic-Richfield Company, through its agents,

servants, employees or vice principals was negligent

in any of the following particulars:

(a) In failing to provide a reasonably safe place for

the plaintifis to perform their work on the storage

tank in question;

(b) In failing to adequately inspect the storage tank

for dangerous conditions which were known to the de-

fendant or should have been known to the defendant

by use of ordinary care and which were not open and

obvious to the plaintiffs or their employers;

(c) In failing to warn the plaintiffs of dangerous

conditions which were known to the defendant or should

have been known to the defendant by the use of ordinary

care and which were not obvious to the plaintiffs or

their employer which were dangerous to the plaintiffs

in the performance of their work.

“And you further find that any one of these acts or

omissions of negligence contended for by the plaintiffs

| was a proximate cause of the injuries and the damages

sustained by the plaintiffs, then you would find for the

plaintiffs and against the defendant. And you would

answer special interrogatory number one “a”, “b”,

and “c”, yes, and also the proximate cause issue,

special issue number two, yes.

“Now,.we turn to the issues of the defendant and the

defendant contends that the plaintiffs were injured as

B-2

the result of the particular work which their employe,

Ellerbee Brothers Incorporated, contracted to do for the

“Now, in this connection, the Court would charge you

the owner of premises such as the defendant herein js

_ to the plaintiffs herein, if and only if the owne

(a) Knowledge or by the exercise of reasonable car

should have discovered a condition which if known tp

it should have realized would have involved an uw.

reasonable risk to them and;

(b) If they had no reason to believe that they

would discover the condition or realize the risk involved

therein;

the plaintiffs’ employer is to be considered by yu

as adequate warnings to the plaintiffs. Further, the

Court would instruct you in order to find that th

conditions of the supporting structures of the storage

tank in question were open and obvious, you must find

from a preponderance of the evidence that the full ex-

tent of the condition with all of its details and surrouni-

ing circumstances and the full extent of the dangers

thereof was known and fully appreciated by the

plaintiffs or their employer, Ellerbee Brothers, Incor-

porated. Otherwise, the condition is not open and

obvious.

“Therefore, the Court would instruct you that if you

find from a preponderance of the evidence that the

B-3

plaintiffs’ injuries arose from or were intimately con-

nected with the defects in the premises which their

employer, Ellerbee Brothers, Incorporated, are under-

taking to repair, you will answer interrogatory number

three yes and find in favor of the defendant and against

the plaintiffs.

“Now, if you find from the preponderance of the evi-

dence that the plaintiffs are entitled to recover damages

as a result of some act or omission of negligence, you

do not have to find all of the acts or omissions of

negligen ce which the Court has charged you as existing ing,

repair, then you will find in favor of the plaintiffs and

give your attention to the issue of damages.” (R. 493-

498).

C-1

APPENDIX C

) CONTRACT DATED MAY 8, 1968, BETWEEN

&[LANTIC-RICHFIELD COMPANY AND ELLERBEE

ROTHERS:

«* * * Contractor shall furnish all labor, materials,

tools, supervision and equipment necessary to do the

work described below, * * *

* * * a *

“Furnish supervision, labor, transportation, tools,

equipment and material to remove door sheets and make

necessary repairs as directed to our 521 tank.” (R. 29;

Def. Ex. 1, R. 453).

) DEFENDANT’S ANSWER TO PLAINTIFFS’ IN-

-RROGATORY NO. 9:

“(9) (a) State whether any inspections of the tank in

question were made by any personnel of * * * defendant

prior to the time of plaintiffs’ fall. If so, as to each such

state (b) the date thereof; (c) the nature

thereof; (d) the portion or portions of the tank in-

spected; (e) the purpose of such inspection; * * *”

ANSWERS BY DEFENDANT:

“INTERROGATORY NO. 9a Yes.

“INTERROGATORY NO. 9b No record was made of

the date of such inspection.

“INTERROGATORY NO. 9c Visual inspection and

measurement of structural thicknesses.

“INTERROGATORY NO. 9e To determine repairs re-

quired.” (R. 13, 25, 163).

) TESTIMONY OF DEFENDANT’S INSPECTOR,

)LLINSON:

“Q. About how high up in the air did this (rolling

scaffold) put you?

“A. Like I say, this tank was forty-two foot, I looked

it up on the records before I left, forty-two foot four

“Q. About two feet above your head?

“A. I’d say about two foot above my head becaup

they had to roll the scaffold because you have about

two foot slope.

“Q. This put you right up at the top.

“A. Right up at the top where I could read up and

check the rafters and the crown and the circle beams on

it.” (R. 288, 289).

“A, * * * I noticed that we had some bent rat.

ers * * * (R. 280).

“Q. So, it was between the outer circle beam and

the shell, is that correct?

“A. That’s right.” (R. 285).

«“* * * T checked the thickness of the rafters and

the circle beams and the top of the column and every.

thing, * * *” (R. 296).

“«* * * when I made my inspection I found some

bad bolts in here (at the outer shell of the tank where

rafters are bolted to clips), some of them the nuts was

rusted plumb off and different things here and around.”

(R. 289).

* * * * *

“Q. All right. Do I understand then that there were

—that insofar as deterioration that the girders were

all right?

“A, The girders were all right.” (R. 391).

“A. That is right.” (R. 415),

“Q. All right. So you made no other inspections of

the tank until the fall occurred, is that right?

“A. My inspection had been completed. We de-

termined what repairs we had to make.” (R. 290).

“As far as I know, I am pretty sure Perry (Parker)

and I talked over some of it, you know, the job, in this

tank.” (R. 397).

(4) TESTIMONY OF PLAINTIFF, DREW CHERRY:

Parker, he said, many rafters are in pretty good con-

dition, some of them a half inch thick.

“Q. Did he say anything at all to you all about the

situation as far as the nuts and bolts up there in the

upper supporting structures of this storage tank?

“A. No, sir, he sure didn’t.” (R. 269, 270).

“Q. Now, at the time that you all were working

up there, am I correct in saying that the supporting

structures were beneath where you were working?

* * * * *

“Q. Were you able to see them where you were

working?

“A. Not the ones that collapsed, they was right on

the edge.” (R. 230).

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C-4

(5) TESTIMONY OF PLAINTIFFS’ CO-WORKER

BENNY HARVEY: ‘wea

“Q. Was there any statement to your knowlelp

made by Mr. Rollinson with reference to any of th

bolts that he observed up there at the top of this tank)

“A. Not — No statement to me or to my knowledge

No, sir.” (R. 190).

“Q, Now, had you heard or had there been any

statement or warning made to you by Mr. Rollinson

any other persons there in Atlantic-Richfield regarding

the condition of any of the bolts or nuts at the top of

the supporting structures?

“A. No, sir.” (R. 217, 218).

“Q. It (the warped rafters) was not at the point

where you all fell, is that correct?

“A. No, sir.

“Q. All right. Now up on top of the storage Tank

No. 521 were there any low places or indentations in

the top of the tank?

“A. Yes, sir.

“Q. Were any of these around where you were (work- —

ing) on the morning of August 5, 1968?

“A. No, sir.

“Q. Were any of those, to your knowledge, over the

structural support points in this tank?

“A. No, sir, they were in between the structural

points itself.” (R. 191).

“A, * * * that would be the strongest points of the

structural work is over these, in and around these

columns.

“A, Yes, sir.” (R. 192, 193).

(6) TESTIMONY OF DEFENDANT’S WITNESS,

PARKER:

«* * * the columns were in reasonably good shape.”

(R. 431).

“Q. * * * Is it correct that being over one of these

structural supports is in all reasonable probability go-

ing to be about the safest place for someone to work

or be on the roof of one of — one of these storage tanks?

“A. Yes, sir, I think I follow you.

“Q. And if you were to direct someone to what you

would naturally assume to be the safest point on one of

these storage tanks it would be where you figured one of

these supporting structures would be located, is that

correst?

“A. Right.

“Q. Now, would that have been the same situation on

the morning of August 5, 1968, and with reference to

storage tank No. 521, would you have felt the same

way about that storage tank?

“A. Yes, sir.” (R. 449, 450).

“Q. Now, the overall job as I understand it as it

stood at the time that this incident occurred simply had

gone through a portion of the removal of the roof on

this storage tank, is that correct?

“A. Correct.

(7)

C4

“Q. And you all had not actually gotten into doing |

any sort of job, work, or activities insofar as these sup.

porting structures of this tank were concerned, is that

correct?

“A. That’s correct.

“Q. All right. And, as a matter of fact, the supporting

structures were directly beneath the roof of this

tank and as you were standing up there on the mof

of this storage tank you couldn’t see them, could you?

“A. From the top side, no, sir.” (R. 444, 445).

“Q. * * * if you had had any prior warning o

knowledge at all that these men were going to fall as

a result of failure of one of these structural supports you

wouldn’t have ever sent them up there on that storage

tank?

“A. Well, no sir.

* * * * *

Q. * * * if you knew it was going to collapse you |

wouldn’t have?

“A. Certainly not.” (R. 450, 451).

6c

REPORT OF DEFENDANT’S SUPERINTENDENT

OF SAFETY, H. D. BRITT, ENTITLED “521 TANK

INCIDENT” AND DATED AUGUST 5, 1968:

““* * * Suddenly the center ring girder just above one

of the tank columns came loose where it was bolted to-

gether by bolts through a short section of plate. This

circular girder was an inner support for the roof rafters -

which were supporting the plates the mer. were standing

on. As the inside end of rafters dropped the roof began

collapsing at the center of the tank causing (Cherry)

and Mullican to slide down the plates and fall to the

bottom of the tank. * * *” (R. 20, 31, 33; PL Ex. 1, 2,

R. 168).