Hoskins v. A.O. Smith Corp.

SILER, Circuit Judge.

In this wrongful death action arising out of the repair of a mechanical power press, plaintiff Kimberly Ann Hoskins (“plaintiff’), the surviving spouse of John Hos-kins (“Hoskins”), deceased, and the guardian of their two minor children, appeals the district court’s grant of summary judgment in favor of defendant A.O. Smith Corporation (“A.O.Smith”). Because A.O. Smith did not owe a duty to Hoskins under Tennessee law, we affirm.

BACKGROUND

In 1997, Hoskins was fatally injured while repairing a mechanical power press at A.O. Smith’s plant in Milan, Tennessee. He was an employee of Mid-American Machine Repair, Inc. (“Mid-American”), an independent contractor specializing in the repair of presses. Hoskins had worked for Mid-American less than a year but had worked previously as a maintenance worker in a company’s press department for at least seven years.

In the fall of 1996, Mid-American and A.O. Smith entered into an agreement for the repair of a Danly press. Pursuant to *501the contract, Mid-American agreed to furnish men and equipment to complete the work within the scope of the agreement. The contract included a six-month warranty on the material and workmanship. Mid-American made the initial repairs to the press during A.O. Smith’s Christmas shutdown. On January 6, 1997, David Mallory, an owner and the president of Mid-American, and Hoskins returned to A.O. Smith on a different job. Mallory and Hoskins noticed three A.O. Smith employees working on the press and went over to assist.

To determine why the press was malfunctioning, the ram, the part of press which moves up and down, had to be cycled. To cycle the ram, one person had to manually close a circuit relay on the side of the press, and another person had to simultaneously press two “inch” buttons on the front of the press. After cycling the ram, some of the men then went up in a manlift to see if any oil leaked from the overload valves at the top of the ram.

After going through this procedure at least four times, the five men agreed that Mallory, Hoskins, and Jerry Reaves, an A.O. Smith employee, would cycle the ram again while the other two went to lunch. When the two men returned, they would finish the repairs and put the press back into production. Hoskins said, “Let’s do it, just get it over with where we can go to lunch,” and climbed into the basket of the manlift. Mallory went to the front of the press to operate the inch buttons, and Reaves took his place at the control panel on the side of the press to close the circuit relay. Prior to closing the relay, Reaves walked around to the back of the press where Hoskins stood in the basket of the manlift, either already at the top of the ram or on the way up, and yelled or motioned to him that they were about to cycle the ram. Hoskins said “okay” and nodded his head. Reaves then went back to the control panel, closed the circuit relay, and told Mallory that they were ready. Mallory pressed the inch buttons, and the ram cycled. Neither Mallory nor Reaves could see Hoskins from his position.

After cycling the ram and shutting down the press, Mallory and Reaves walked around the press and saw Hoskins lying in the basket of the manlift. Mallory lowered the basket of the manlift and found Hoskins unconscious and bleeding from a skull injury. Hoskins died shortly thereafter.

Asserting diversity jurisdiction, plaintiff filed this action against A.O. Smith, claiming that Hoskins was fatally injured due to the negligence of A.O. Smith and its employee Reaves. Granting A.O. Smith’s motion for summary judgment, the district court held that A.O. Smith did not owe a duty to Hoskins under Tennessee law.

STANDARD OF REVIEW

We review de novo the district court’s grant of summary judgment. Ellis v. Chase Communications, Inc., 63 F.Sd 473, 475 (6th Cir.1995). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).

DISCUSSION

Duty is a question of law to be determined by the court. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000). Generally, an owner owes an independent contractor hired to perform work on the premises a duty to provide a reasonably safe place in which to work. Blair v. Campbell, 924 S.W.2d 75, 76 (Tenn.1996). *502Tennessee has long recognized an exception to this general rule:

An exception to the general rule is recognized where the risks arise from, or are intimately connected with, defects of the premises or of machinery or appliances located thereon which the contractor has undertaken to repair. As to contracts for such repair work, it is reasoned that the contract is sufficient in itself to impart notice of a defect, the extent of which the repairman must discover for himself. This is merely to say that one assumes the risk of a known danger or of an undertaking which is inherently dangerous.

Shell Oil Co. v. Blanks, 46 Tenn.App. 539, 330 S.W.2d 569, 571 (1959) (internal citation omitted). The Tennessee Supreme Court recently reaffirmed this exception and held that the exception does not violate public policy:

[T]he law of this state, and of all others that we are aware, perceives danger as a legitimate consideration in the bargaining process, as long as the contractor has a reasonably specific idea of the perils that he or she will encounter.... Simply put, danger is often treated as one of the many factors in the pricing of an economic transaction.
Furthermore, the policy of placing the risk of incurring physical harm during a repair job on a contractor holding himself or herself out as an expert in that work, as opposed to the lay premises owner, is not unjustified, at least as long as the owner does not willfully or intentionally harm the contractor.

Blair, 924 S.W.2d at 78.

Here, A.O. Smith contracted with Mid-American for the repair of the press. Mid-American agreed to furnish men and equipment to complete the repairs. The agreement provided that Mid-American would repair and test the press to assure proper running condition and included a six-month warranty. The repairs performed at the time of the accident were made pursuant to the agreement. There is no allegation that Reaves or any other employee of A.O. Smith willfully or intentionally harmed Hoskins. This case falls within the exception recognized in Blanks; therefore, A.O. Smith did not owe a duty to provide Hoskins with a reasonably safe workplace.

Relying on Johnson v. EMPE, Inc., 837 S.W.2d 62 (Tenn.Ct.App.1992), plaintiff asserts that because Reaves was in control of the press at the time of the accident, he owed Hoskins a duty of ordinary care. Johnson sets forth the duty of a premises owner to an independent contractor as follows:

An owner of premises who employs a contractor to perform work on the property, but who remains in control of the premises where the work is being done, owes to the employees of the contractor a duty to exercise ordinary care in the management of the premises in order to avoid exposing the employees to an unreasonable risk of harm.
If, however, the contractor had complete control of the premises where the accident occurred and the owner had retained no control of that part of the premises except to the extent of determining if the work was being performed according to the contract, then the owner owes no duty of care to the employees of the contractor.

Id. at 65 (citation omitted).

Johnson, however, does not involve circumstances in which an independent contractor is injured while repairing the machine the contractor was hired to repair and does not discuss the exception recognized in Blanks. Nevertheless, to the extent Johnson applies to the present case, *503there is insufficient evidence to support plaintiffs claim that Reaves was in control of the press at the time of the accident. Although Reaves and other A.O. Smith employees assisted with the repairs, Mallory and Hoskins were in control of the repairs to the press pursuant to the contract between Mid-American and A.O. Smith.

The dissent concludes that fact questions remain concerning the degree of control the parties possessed and exerted over the press and the premises, and that depending on the existence or degree of control exercised by A.O. Smith, it may have had a duty to warn Hoskins of the danger. While we disagree that the issue of control presents a genuine issue of material fact, we note that the record contains uncontro-verted testimony by Reaves that he warned Hoskins that he was going to cycle the press and that Hoskins acknowledged that warning. Hoskins ascended in the manlift well knowing that he would be out of sight of both Reaves and Mallory while they operated the press and that no one remained who would be able to see him and communicate a warning to Reaves and Mallory if he should become endangered by the operation of the press.

Assuming, arguendo, that A.O. Smith had a duty to warn Hoskins, that duty was discharged by Reaves. Even if Reaves’ testimony about the warning is discounted, Hoskins was, as the district court found, at least equally negligent as a matter of law and barred from recovery under Tennessee’s comparative negligence law.

Because A.O. Smith did not owe a duty to provide Hoskins with a reasonably safe workplace under Tennessee law, the district court did not err in granting summary judgment to A.O. Smith.

AFFIRMED.