Auxier v. Auxier

Opinion by Judge RULAND. In an action to recover damages for personal injuries, plaintiff, George B. Auxier, appeals from a summary judgment dismissing his complaint against defendant, Michael Auxier d/b/a A & C Construction, a partnership. We affirm in part, reverse in part, and remand for further proceedings. Michael Auxier was constructing a single-family residence on a residential lot owned by A & C Construction. Plaintiff and Michael had agreed that plaintiff, an experienced construction worker, would return to work for Michael, but the rate of compensation and the type of work plaintiff would perform had not been resolved. Pursuant to Michael’s request, plaintiff visited the construction site to familiarize himself with the project. While at the site, plaintiff contacted Michael’s son to discuss the project. In the course of that conversation, the son either suggested or plaintiff offered to go onto the roof to install paint on soffits with an air compressor spray gun. Plaintiff was wearing tennis shoes which are suitable footwear for a roof top. The roofer had installed tar paper on top of the particle board surface of the roof, and the roof has a pitch such that for every foot of linear distance, the roof rises seven inches. Shingling was scheduled for a later date. Plaintiff was on the roof a short time painting when he fell to the ground. He suffered substantial injuries and has no recollection of what caused the fall. The depositions and affidavits of the parties establish that the son inspected the roof shortly after obtaining medical assistance for plaintiff and determined that a number of staples and nails were protruding from the roof surface up to one-quarter inch. He also discovered a piece of wood protruding from the roof. The roofer’s affidavit indicates that if there were staples protruding from the roof, this would create a dangerous condition. In Michael Auxier’s deposition, he indicates that, unless an experienced construction worker trips on some object, there is no reason to fall from the roof. He also characterized plaintiff as a careful construction worker. Plaintiff’s complaint alleged three theories: (1) ’common law negligence; (2) res ipsa loquitur; and (3) violations of regulations adopted pursuant to the Occupational Safety and Health Act (OSHA), 29 U.S.C.A. § 651, et seq. (1985). In the course of submissions of the parties on defendant’s motion for summary judgment, plaintiff abandoned his claim under OSHA but asserted that OSHA regulations were admissible to establish a standard of care. Following its review of the summary judgment papers, the trial court concluded that the probabilities were evenly balanced for and against the existence of negligence. On that basis, the court dismissed both the claim predicated upon common law negligence and the claim predicated upon res [95] ipsa loquitur. The court further concluded that the OSHA regulations were not admissible to establish a standard of care for negligence because of the parties’ agreement that plaintiff was not an employee at the time of the accident. I Plaintiff initially contends that the trial court erred in concluding, in effect, that the summary judgment submissions failed to establish any material issue of fact as to the existence of negligence. Defendant responds that those submissions failed to establish either a duty of care from defendant to plaintiff or a breach of any duty. We agree with plaintiff. We initially reject defendant’s contention that the record does not support there being any legal duty of care owed to plaintiff. The premises owner’s duty to an entrant on his property is governed by the rules adopted in Mile High Fence Co. v. Radovick, 175 Colo. 537, 489 P.2d 308 (1971). See Gallegos v. Phipps, 779 P.2d 856 (Colo.1989). Under the circumstances here, Mile High imposes a duty upon Michael to furnish a reasonably safe place even for a non-employee, such as plaintiff, to work. See Titan Construction Co. v. Nolf, 31 Colo. App. 21, 500 P.2d 377 (1972), rev’d on other grounds, 183 Colo. 188, 515 P.2d 1123 (1973). This is because of the foreseeability of harm to plaintiff. See Wills v. Bath Excavating & Construction Co., 829 P.2d 405 (Colo.App.1991) (cert. granted, May 11, 1992). With reference to defendant’s contention that there was no breach of any duty, we note that, upon review of a summary judgment, any doubt as to the existence of a material issue of fact relative to the existence of common law negligence must be resolved in favor of plaintiff, and plaintiff must receive the benefit of all favorable inferences which may be drawn from the undisputed facts. See Mancuso v. United Bank, 818 P.2d 732 (Colo.1991). Here, defendant’s son ascertained that there were protruding staples, nails, and a piece of wood on the roof immediately after the fall, and the roofer’s affidavit confirms that such would constitute a dangerous condition. While the precise location of these protrusions is not clear, neither is plaintiff’s position on the roof just prior to the fall. Hence, giving plaintiff the benefit of all favorable inferences, we conclude that entry of summary judgment dismissing the complaint was improper. See Mancuso v. United Bank, supra. II Plaintiff next contends that the trial court erred in dismissing his claim based upon the evidentiary doctrine of res ipsa loquitur. Again, we agree. As pertinent here, under the doctrine of res ipsa loquitur, it is unnecessary for plaintiff conclusively to exclude all other possible explanations for the accident other than defendant’s negligence. And, the evidence must be viewed, again, in a light most favorable to plaintiff in determining whether defendant’s negligence is the probable explanation. See Ravin v. Gambrell, 788 P.2d 817 (Colo.1990). Viewing the summary judgment submissions in that context, we conclude that the trial court erred in dismissing this claim. The record reflects that plaintiff generally exercised due care in construction work, that a careful worker does not fall unless there are latent protrusions on a roof, and that such protrusions existed pri- or to plaintiff’s fall. III Plaintiff finally contends that the trial court erred in ruling that pertinent OSHA regulations were not admissible in evidence to establish a standard of care required for work undertaken from the roof of the structure. Defendant responds that OSHA does not apply in this case because plaintiff was not his employee at the time of the accident. We concur with the trial court’s ruling. Plaintiff must first demonstrate that he is a member of the class that the OSHA [96] statute was intended to protect. See Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231 (6th Cir.1982); see also Hageman v. TSI, Inc., 786 P.2d 452 (Colo.App.1989). Pursuant to OSHA, the regulations in question apply to “employees.” See 29 U.S.C.A. § 652(5) & (6) (1985). Courts in other jurisdictions do not agree on whether OSHA regulates only the obligations of an employer to its employees or whether it applies to the employees of others on the employer’s work site. See Teal v. E.I. DuPont & Co., 728 F.2d 799 (6th Cir.1984) (OSHA applies for the benefit of all employees on the project, including employees of an independent contractor who performs work at another employer’s work place.); Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir.1981) (OSHA regulates only the obligation of an employer to his employees). However, we find no authority, and plaintiff has cited none, in which OSHA regulations have been applied for the benefit of third persons who were not employed by anyone at the work site. Here, the parties agree that plaintiff was not defendant’s employee at the time of the accident, and there is no suggestion that he was either a subcontractor or the employee of any other firm engaged to work at the site. Hence, OSHA and the regulations do not apply. That part of the judgment determining that the OSHA regulations are not pertinent to resolution of plaintiff's claims is affirmed. The balance of the judgment is reversed, and the cause is remanded for further proceedings consistent with the views expressed in this opinion. METZGER, J., concurs. JONES, J., concurs in part and dissents in part.