Case 1:06-cv-02055-KOB Document 118 Filed 05/06/08 Page 1 of 33 FILED 2008 May-06 PM 05:31 U.S. DISTRICT COURT N.D. OF ALABAMA Case Document 118 Filed 05/06/08 Page 2 of 33 TABLE OF CONTENTS STATEMENT OF UNDISPUTED RELEVANT MATERIAL FACTS 2 A. The Accident at Issue Occurred While Independent Contractors Betacom and ALT Replaced Eguipment at a Cell Tower Site in Talledega .. 2 B. The Independent Contractors on the Talladega Project had Their Own Safety Policies for their Employees. 5 C. Betacom Employees Randy Wheeler and Bubba Cotton Were Experienced Tower Workers Who Knew that ALT Tower Contractors Were Working on the Talladega Site. 6 D. The Talladega Site Project Managers Monitored the Independent Contractors' Progress on the Eguipment Installations._ 8 E. While ALT Employees Lowered an Antenna from the Tower, their Rope Broke. The Antenna Fell, Striking Betacom's Cotton as He Walked Across the Tower Site. 9 ARGUMENT 12 I. TO OVERCOME MOTION FOR SUMMARY . JUDGMENT, PLAIN TIFF MUST PRESENT SUBSTANTIAL EVIDENCE IN SUPPORT OF EACH ELEMENT OF HER PREMISES LIABH..ITY CLAHVI. 13 H. PLAINTIFF CANNOT PROVE BY SUBSTANTIAL EVIDENCE THAT CINGULAR, THE OWNER OF THE TOVVER PROJECT, OWED A DUTY TO COTTON, THE EMPLOYEE OF AN INDEPENDENT CONTRACTOR WORKING ON THE PROJECT . 15 A. As a Matter of Law, Alabama's "No Dugg" Rule Eliminates Plaintiffs Premises Liabilig; Claim. 16 B. This Case Does Not Fall Within the "Control" Exception to the "No Dug" Rule because Plaintiff Cannot Prove by Substantial Evidence that Cingplar Controlled the Marmer in which the Independent Contractors at the Tower Site Performed their Work. 19 ii Case Document 118 Filed 05/06/08 Page 3 of 33 C. The Inherently Dangerous Activig; Exception to the "No Dug" Rule Does Not Apply in this Case because Construction Work is not Inherently Dangerous if an Independent Contractor Exercises Proper Care. 24 IH. THE ELEVEN TH CIRCUIT DOES NOT RECOGNIZE THE MULTI- EMPLOYER DOCTRINE, AND OSHA HAS ABANDONED THE 27 CONCLUSION 29 CERTIFICATE OF SERVICE 30 Case Document 118 Filed 05/06/08 Page 4 of 33 MOBILITY, MOTION FOR SUMIVIARY JUDGMENT Pursuant to Rule 56 ofthe Federal Rules of Civil Procedure, Defendant Mobility, LLC, formerly Cingular Wireless, LLC ("Cingular"), moves the Court for summary judgment in its favor and against Plaintiff Patricia Cotton ("Plaintifi") on her only claim against Cingular in this action, a premises liability claim. PlaintifFs claim arises out of a tragic accident that occurred at a cell tower site in Talladega, Alabama while independent contractors were replacing equipment. Under well-settled Alabama law, Plaintiff carmot prove by substantial evidence that Cingular, the owner of the equipment shelter in which Bubba Cotton ("Cotton") was working, owed a duty to Cotton, an employee of one of the independent contractors involved in the site modification. Cingular therefore is entitled to judgment as a matter of law. In support of its Motion for Summary Judgment, Mobility shows the Court the following: I 1 Case Document 118 Filed 05/06/08 Page 5 of 33 STATEMENT OF UNDISPUTED RELEVANT MATERIAL FACTS A. The Accident at Issue Occurred While Independent Contractors ALT and Betacom Replaced Eguigment at a Cell Tower Site in Talledega. 1. Cingular is a provider of wireless voice and data communications services. Cingular Evidentiary Submission Tab 1, Newberry Af5davit. The unprecedented accident at issue occurred during the of a cell tower site in Talledega, Alabama. Tab 2, Wheeler Depo., p. 100; Tab 3, 5-16-07 Josh Cook Depo., pp. 284-85. 2. Cingular leases the Talladega tower site hom Crown Castle. Tab 4, Roth Depo. pp. 221-22. The site includes a 400 foot cell tower and a Cingular equipment shelter that sits beside the tower. Tab 5, Stoehr Depo., p. 15; Tab 6, Newberry Depo., p. 145. 3. According to Cingular's specifications for the site modification, antennas on the tower were to be replaced, and a new, 30 foot long concrete shelter was to be installed at the base of the tower. Tab 2, pp. 66, 127; Tab 3, p. 367; Tab 6, p. 65. New equipment was slated for the equipment building. Tab 6, pp. 70-73. 4. Independent contractors performed the at the Talladega site. NSORO, LLC agreed to replace the antennas on the tower. NSORO subcontracted the tower work to WesTower Communications. 2 Case Document 118 Filed 05/06/08 Page 6 of 33 WesTower, in turn, subcontracted the work to ALT, Inc. Tab 2, pp. 368-69; Tab 3 p. 137; Tab 4, pp. 258-59. Cingular accepted Betacom Incorporated's bid to provide and install equipment in the new equipment shelter. Tab 2, p. 458; Tab 6, p. 63. 5. The decedent, Bubba Cotton, was an employee of Betacom Incorporated ("Betacom"). On March 10, 2006, as Cotton walked out of Cingular's concrete equipment shelter to go to lunch, the rope that ALT was using to lower an antenna broke, causing the 50 potmd antenna to fall approximately 200 feet. The a11tenna struck Cotton, and he died instantaneously. Tab 3, p. 324. 6. Under its Master Supplier Agreement with Cingular, Betacom aclmowledged that it was solely responsible for the work that it performed under the contract. Section 4.7 of the Betacom agreement states: a. SUPPLIER is engaged in an independent business and will perfonn all obligations under this Agreement as an independent contractor a11d not as the agent or employee of b. SUPPLIER's personnel performing Services shall be considered solely the employees of SUPPLIER and not employees or agents of c. SUPPLIER has and retains the right to exercise full control of and supervision over the performance of the Services and full control over the employment, direction, assignment, compensation, and discharge of all personnel perfomiing the Services. Tab 1, Ex. A, 4.7. 3 Case Document 118 Filed 05/06/08 Page 7 of 33 . 7. Betacom agreed to supply and install the materials that Cingular requested according to Cingular's The conn?act requires Betacom to "provide flexibility in the way it allocates its resources" so that Betacom can meet Cingular's forecast deadlines. SUPPLIER agrees to complete all required development and acquisition of technology, according to the schedule provided in the applicable product supplement, that meet the Specifications as described in this Agreement. SUPPLIER also agrees to allocate sufficient engineering, manufacturing and Installation capacity to provide al (sic.) required Materials and/or Services to achieve the pace of deployment as described in the applicable product supplement. SUPPLIER understands that this forecast is subject to change and agrees to provide flexibility in the way it allocates is resources so that CINGULAR's actual demand can be met. Q, Ex. A, 8. The Betacom Supplier Agreement gave Cingular the option to inspect Betacom's work: When CINGULAR's Order for Goods to be furnished by SUPPLIER rmder this Agreement does require Installation of the Goods, CINGULAR may inspect completed portions on such Installation. Q, Ex. A, The balance of this provision, which contains details about Cingular's right to determine Betac0m's "material compliance with applicable Installation Specifications" can be found at Tab 1, Ex. A, 4 Case Document 118 Filed 05/06/08 Page 8 of 33 B. The Independent Contractors on the Talladega Project had Their Own Safety Policies for their Employees. 9. In 2005, Cingular issued a contractor safety policy letter that requires each contractor on a tower site to have a formal safety program. The letter states: every contractor (and subcontractor) [at a tower site] must have a safety program that assures compliance with all applicable safety regulations and Ci11g11lar requirements. All contractors who work for Cingular must have (1) A safety program that establishes sound, definite 311d comprehensive safety measures commensurate with the proj ect [and] (2) Appropriate safety- related training. Tab 7, Depew Depopp. 269-70. 10. The Betacom safety policy manual in effect at the time ofthe Talladega proj ect provides that, is the responsibility ofthe individual employee to know and follow the safety practices for any duty being performed, whether or not that duty is part ofthe employee's regular job." Tab 2, pp. 44-45, Ex. ,8 ?1.02. Furthermore, "It is the policy ofthe company . . . to provide and maintain proper safety throughout its operations. It is expected that each I supervisor will immediately take reasonable steps to resolve any problem or potential problem conceming safety and health of the employee." at ?1.03. 11. Betacom crew leader Randy Wheeler acknowledges that he was responsible for the safety of the Betacom employees at the tower site. Ll, at 428. He testified that it was his duty, "to make sure that there was no hazardous things 5 Case Document 118 Filed 05/06/08 Page 9 of 33 that would hurt" him or his co-employees. at 59-60; 428 ("My duties are to make sure the people on my crew do not get hurt"). 12. ALT also had a company safety policy. Tab 3, pp. 335-37. ALT crewmembers had a "tailgate safety meeting" every morning before they began working. at 34-35. Josh Cook, the ALT tower foreman, completed daily safety reports and submitted those and other workplace safety forms to WesTower. at 29, 32, 36, 213-14. Cook was responsible for the safety of his crew members. at 26-28. C. Betacom Employees Randy Wheeler and Bubba Cotton Were Experienced Tower Workers Who Knew that Tower Contractors Were Working on the Talladgga Site. 13. The Talladega site modiication was but one of many tower projects on which Wheeler and Cotton had worked. Both men received formal tower training. Tab 2, pp. 86-87. In fact, Wheeler began on towers in 1985 and had climbed approximately 400 towers to raise, lower and install equipment. at 83 -84, 91. Cotton worked on towers for one year before he moved to ground-level equipment work. at 89. Wheeler had been a crew leader for Betacom for eight years at the time of the accident. at 58. 14. A cell tower is surrormded by a drop or fall zone. The radius of the drop zone is half of the height of the tower. Tab 3, pp. 45-47, 93. Consequently, 6 Case Document 118 Filed 05/06/08 Page 10 of 33 the 400 foot Talladega tower has a 200 foot "drop zone." Wheeler knew that items could fall from towers and that they might ily out from the tower over signiicant distances. Tab 2, p. 100 have seen things ricochet as far as, you know, a hundred and fifty feet away from a two hundred foot tower"). In recognition of the fact that items can fall from towers, Betacom's safety policy provides that, "[h]ord hats . . . be worn by the grounds personnel when there llS' someone on the t0wer." ?5.05 (emphasis supplied).2 Workers in the tower industry know that if someone yells "headache," it means that something is falling hom a tower. Tab 2, p. 104. 15. At the time ofthe accident, Betacom's Wheeler and Cotton had been at the tower site on a11d off for ten days. The men knew that an ALT tower crew was working on the site too. In fact, on the day before the accident, the ALT crew members spent time in the equipment shelter with Cotton and Wheeler because the weather was not suitable for tower work. Tab 2, p. 70. The men hom the two crews visited with each other and talked about their tower experience. E, at 70-73; Tab 3, pp. 65, 300, 360. At the end of the day, Josh Cook stored some of his tools and supplies in tl1e equipment building because of the inclement weather. Tab 3, pp. 59-60. 2 Cingular does not contend that a hard hat would have prevented Mr. Cotton's injury. The Betacom policy reflects the contractor's knowledge that items can fall trom towers. 7 . Case Document 118 Filed 05/06/08 Page 11 of 33 D. The Talladega Site Project Managers Monitored the Indegendent Contract0rs' Progress on the Eguigment Installations. 16. In the days preceding the accident, Damon Depew, the project manager for the tower work, visited the Talladega site. So did Don Stoehr and Scott Ingram, Cingular equipment technicians. Tab 2, pp. 403 -04, 408the men allegedly reminded Wheeler that Betacom's work in the equipment shelter had to be done before the upcoming Talladega race. Tab 2, p. 416.3 Wheeler was coniident that he and the other Betacom employees would be able to complete the equipment installation on time. at 64, 392-93. He stated that, nothing unusual about us getting pressure put on us." at 422. 17. Depew spoke to the ALT employees at the site. ALT's tower foreman, Josh Cook, asked whether the ALT crew could have more time to complete its work. Tab 2, pp. 78-79; Tab 3, pp. 180-81, 307. Depew ptuportedly called Terry Newberry, the head of the equipment division of Cingular's engineering department who oversaw Cingu.lar's projected timetable for the project, and conveyed Cook's question. at 307-08. Depew that Newberry told him that all of the contractors had deadlines to meet, and the 3 Wheeler contends that he had this conversation with Don Stoehr, a Cingular tield engineer. Tab 2, pp. 416-17. Stoehr does not recall this conversation. Tab 5, pp. 30-31, 124-25. For the purposes of this motion only, reading the record in the light most favorable to plaintiff, Cingular will assume that this conversation occtured. I Case Document 118 Filed 05/06/08 Page 12 of 33 connectors had to resolve scheduling conflicts among themselves. Depew conveyed this information to Cook. Tab 7, p. 121-22.4 Josh Cook stated that ALT and Betacom "should be able to work together" to resolve scheduling questions. Tab 3, p. 316. There is no evidence that Cook had discussions with Depew on the issue. 18. Depew and Gabe the project manager for the equipment shelter, monitored the overall progress on the Talladega proj ect during weekly Wednesday phone conferences with various Cingular representatives. Tab 6, p. 48. E. While ALT Employees Lowered an Antenna from the Tower, their Rope Broke. The Antenna Fell, Striking Betacom's Cotton as He Walked Across the Tower Site. 19. On the moming of the accident, Friday, March 10, 2006, Cotton and Wheeler arrived at the site early and entered the concrete equipment building. While Cotton and Wheeler were working, the ALT crew arrived. Tab 3, pp. 57-58. At their morning safety meeting, the ALT crew discussed the fact that they would be overhead while other contractors were on site. Josh Cook decided to "Newberry does not recall this conversation, and there is no record of a telephone call to him Eom the tower site on March 9, 2006. Depew denies visiting the site. Tab 7, p. 49. He testified that he and Josh Cook discussed tower work over the phone. For the purposes of this stmimary judgment motion, Cingular presents this evidence in the light most favorable to Plaintiff, expressly reserving the right to contest Plaintiffs rendition of the evidence if the Court denies Cingular's smnmary judgment motion. 9 Case Document 118 Filed 05/06/08 Page 13 of 33 proceed with the tower work. at 206, 246, 364, 366-67. Two ALT employees climbed the tower and began rigging it with ropes so that they could lower some of the old antennas. Meanwhile, Josh Cook walked to the equipment building where Cotton and Wheeler were working to gather the tools that he left in the building the night before. Tab 2, p. 125; Tab 3, pp. 61, 64-65. Wheeler concedes that he Cotton lmew that the ALT crew was working on the site on the day ofthe accident. Tab 2, pp. 135, 433, 440. 20. It took the ALT crew more than two hours to set up the ropes on the tower. Tab 3, pp. 72-73. While the ALT crew was rigging the tower, l/Vheeler walked back and forth across the tower site to get cable hom his truck. He contends that he did not see the ALT crew members on the tower. Tab 2, pp. 140- 41, 144. As the ALT crew Hnished rigging the first antemia, two more Betacom employees, Eric Davis and Jason Cook, arrived and walked across the site to the building where Cotton and Wheeler were working. Tab 3, pp. 111-12. Once inside the building, Betacom's Cook and Davis discussed out loud the work that ALT was doing on the tower, but neither Jason Cook nor Davis knows whether Cotton or Wheeler heard the discussion. Tab 8, Jason Cook Depo., pp. 20-21, 77- 79. 10 Case Document 118 Filed 05/06/08 Page 14 of 33 21. Outside, the two ALT employees on the tower signaled ALT foreman Josh Cook that they were ready to lower the first antenna. Because he could not see the equipment building from where he stood beside a truck to operate the capstan hoist to lower the antenna, Cook walked over to the equipment building to make certain that all of the Betacom people were inside. Tab 3, pp. 113-14, 126. He did not enter the building to tell the Betacom employees that ALT was about to lower the iirst antenna. at 122, 125. Cook walked back to the truck and the ALT crew members began lowering the antenna. at 225-27. 22. At the same time, the four Betacom employees decided to break for lunch. To get to their trucks, the Betacom crew members had to cross the tower's 200 foot drop zone. As they walked out of the equipment building, none of the men -- not even the two who undisputedly knew that ALT was on the tower -- looked up to see what was happening on the tower. Tab 2, p. 443; Tab 8, p. 77. None of them surveyed the tower area to see where the tower crew was working. Contrary to Betacom's safety policy, none of the Betacom employees was wearing a hard hat. Tab 2, p. 460. 23. Wheeler leit the building Erst; Cotton walked out last. Tab 2, p. 147- 48. As Cotton exited, the short rope on the antenna broke. Tab 3, pp. 209, 222, Case Document 118 Filed 05/06/08 Page 15 of 33 228, 297, 324.5 The antenna fell approximately 200 feet and struck Cotton in the back of his head. Cotton died instantly. at 209, 230. 24. Shortly after the accident, Plaintiff sued Cingular, Betacom, WesTower, ALT, Crown Castle and various individual defendants. Complaint. Plaintiff voluntarily dismissed her claims against Crown Castle and the individual defendants. Plaintiff asserts a premises liability claims against Cingular. First Amended Complaint. Discovery in this matter has been exhaustive. The undisputed material facts compel summary judgment in favor of Cingular. ARGUIVIENT . Plaintiff cannot prove by substantial evidence that Cingular, the owner of the Talladega tower proj ect, owed a duty to Cotton, an employee of one of the independent contractors working on the proj ect. Under Alabama law, the owner or occupant of a construction site ordinarily does not have a duty to warn employees of an independent contractor about hidden hazards on the site unless the owner/occupant has superior knowledge of the alleged hazard. It is undisputed that the Betacom crew lmew that the ALT tower crew was on the site on the day of the accident. 'It is undisputed that Cing11lar does not do tower work. It did not supply the rope, and it did not inspect ALT's equipment. Tab 3, pp. 278-79, 355, 364. 12 Case Document 118 Filed 05/06/08 Page 16 of 33 Alabama law provides an exception to the general "no duty" rule if the premises owner controls the manner which the contractor performed its work. It is undisputed that Cingular does not do tower work. Cingular did not control the manner in which ALT lowered the antenna nom tl1e tower, nor did Cingular tell Betacom how to do its work or when to break &om its work for A second exception to the "no duty" rule arises when the work being performed is intrinsically or inherently dangerous. Alabama law provides that construction work is not inherently dangerous. Cingular did not have a duty to coordinate the work of the independent contractors at the Talladega site under OSHA's multi-employer doctrine. OSHA recently abandoned the doctrine, and this Circuit does not recognize the former OSHA theory. In the absence of substantial evidence of a duty, Cingular is entitled to summary judgment on Plaintiffs premises liability claim. I. TO OVERCOME MOTION FOR SUMMARY JUDGMENT, PLAINTIFF MUST PRESENT SUBSTANTIAL EVIDENCE IN SUPPORT OF EACH ELEMENT OF HER PREMISES LIABILITY CLAIM. Plaintiff asserts that Cingular breached its alleged duty to "exercise ordinary care to render and keep the premises" at the Talladega site "in reasonably safe condition." First Amended Complaint, Count Three. Cingular is entitled to stunmary judgment on the Plaintiff's claim because "the pleadings, depositions, answers to interrogatories, and admissions on iile, together with the affidavits, if 13 Case Document 118 Filed 05/06/08 Page 17 of 33 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). Because Plaintiff, "'the non-moving party bears tl1e ultimate burden of proof regarding the claim at issue, [she], i11 response to [Cingu1ar's] properly supported motion, must go beyond the pleadings and establish, through competent evidence, that there truly is a gen11ine, material issue to be tried.' Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 2548, 2553, 91 L.Ed.2d 265 (1986). However, a 'mere 'scinti1la' of evidence supporting [plaintiffs] position will not sufhce; there must be enough of a showi11g that the jury could reasonably find for t11at party.' Walker v. Darby, 911 F.2d 1573, 1577 (1ltl1 Cir. 1990). 'When deciding whether summary judgment is appropriate, all evidence and reasonable factual inferences drawn therefrom are reviewed 111 a light most favorable to the non-moving party} gig, 285 F.3d at I 1341-42 (citation and quotation marks on1itted)." Henderson v. Waffle House, gg 238 Fed. Appx. 499 (1 Cir. 2007). The Court "must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Libegg Lobby, Inc., 477 U.S. 242, 106 2505, 2513 (1986). "The burden of proof is a substantive issue and is therefore controlled by state law in diversity cases." W)@eld I11ns v. Edward Leroux Group, Inc., 896 F.2d 483, 491 (1 Cir. 1990)(citir1g Palmer v. Hoflinan, 318 U.S. 109, 63 477, 87 645 (1943); United States for Use Benefit . 14 Case Document 118 Filed 05/06/08 Page 18 of 33 of General Elec. Supply Co. v. Wiring Inc., 646 F.2d 1037 (5th Cir. Unit 1981)). Under Alabama law, to overcome a motion for summary judgment, the plaintiff must present substantial evidence in support of each element of her claim. Bass v. SouthTrust Bank of Baldwin Coungg, 538 So. 2d 794, 797-98 (Ala. 1989). "Evidence is 'substantial' if it is of 'such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved."' Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341, 344 (Ala. 1997) (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)). H. PLAIN TIFF CANNOT PROVE BY SUBSTANTIAL CINGULAR, THE OWNER OF THE TOVVER PROJECT, OWED A DUTY TO COTTON, THE EMPLOYEE OF AN INDEPENDENT CONTRACTOR WORKING ON THE PROJECT. The Eleventh Circuit Court of Appeals recently stunmarized the Alabama law that governs Plaintiffs premises liability claim. The general rule in Alabama is that 'a premises owner owes no duty of care to employees of an independent contractor with respect to working conditions arising during the progress ofthe work on the contract.' Weeks v. Alabama Elec. Coop., Inc., 419 So.2d 1381, 1383 (Ala.1982). This rule will not apply if [the owner] 'retains or reserves the right to conu?ol the manner in which the independent contractor performs its work.' Id. If the right of control is retained, 'the relationship changes Hom one of premises owner and independent contractor to that of master and servant} Id. (quotation omitted). But a master-servant relationship is not created 'when the owner merely retains the right to supervise or inspect work of an independent contractor as it progresses for the purpose of determining whether it is completed according to plans a11d and retains the right to stop 15 Case Document 118 Filed 05/06/08 Page 19 of 33 work that is not properly done.' Id. Calloway v. PPG Industries, Inc., 155 Fed. Appx. 450 Cir. 2005)(brackets omitted); also, Edmondson v. Cooper Cameron Corporation, 374 F. Supp. 2d 1103, 1106-07 (M.D. Ala. a general rule, because there is no agency relationship between them, a premises owner owes no duty of care to employees of an independent contractor with respect to working conditions arising dining the progress ofthe work on the contract . . . [however,] the owner may be liable if it retains or reserves the right to control the marmer i11 which the independent conuactor performs its Alabama law); Daniels v. Mead Coated Board, Inc., 858 F. Supp. 1103, 1105 (M.D. Ala. 1994)(same). A. As a Matter of Law, Alabama's "No Duty" Rule Eliminates Plaintiffs Premises Liabiligg Claim. In a premises liability action, an owner and an independent contractor typically occupy the positions of invitor and invitee. As such, under the "no duty" rule, 'The owner of premises is not responsible to an independent contractor for I injuries from defects or dangers which the contractor knows of, or ought to know 'The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not lmown to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as 16 Case Document 118 Filed 05/06/08 Page 20 of 33 to obviate known and obvious dangers, nor is he liable for injury to an invitec resulting ii?om a danger which was obvious or should have been observed in the exercise of reasonable care.' 'The entire basis of an invitor's liability rests upon his superior knowledge of the danger which causes the invitee's injuries. Therefore, if that superior lmowledge is as when the danger is obvious, the invitor cannot be held liable} This rule of law defining the duty owed by a premises owner to an independent contractor applies equally to those employees ofthe independent contractor who are engaged in work in ihrtherance of the contract. Pope v. Cig; of Talladega, 602 So. 2d 890 (Ala. 1992) (affirming smrmiary judgment for owner on premises liability claims asserted by spouse of deceased employee of independent contractor working near wall of an excavation site where danger of cave in was or should have been obvious to the employee) (quoting Bacon v. Dixie Bronze Co., 475 So. 2d 1177 omitted). Cotton worked for Betacom, the independent contractor that Cingular hired to install new equipment in the new concrete equipment shelter. The Betacom Supplier Agreement provides that Betacom supplies services under the agreement as an independent contractor and that Betacom, "retains the right to exercise full control of and supervision over the perfonnance of the Services and f111l control over the employment, direction, assignment, compensation, and discharge of all personnel perfomiing the Services." Tab 1, Ex. A, Daniels, 858 F. 17 Case Document 118 Filed 05/06/08 Page 21 of 33 Supp. at 1105 ("to determine the status ofthe relationship between Mead and CBI, the cotut must examine the written contract and the actions of the parties pursuant thereto"). - The undisputed evidence i11 this case demonstrates that Cotton knew or should have known that objects might fall from the tower while he walked across the tower site. Cotton and Wheeler had worked on tower sites for years. Before they switched to grou11d-level equipment work, they both climbed cell towers and performed the type of work that ALT was doing on the day of the accident. Tab 2, pp. 88-89. Wheeler and Cotton knew that things might fall Eom tl1e tower. In fact, Betacom's safety policy required Betacom employees like Cotton and Wheeler to wear hard hats at a tower site when people were on the tower for the obvious reason that things might fall from the tower. Tab 2, Ex. 8, Wheeler testihed that although he a11d Cotton lmew that the ALT crew was on the site on March 10, he did not know that ALT was on the tower. Alabama law imposes on Cingular a duty to alert the Betacom employees to the situation gg if Cingular had superior lmowledge of a hidden danger -- that is, only if Cingular lmew that the ALT crew was on the tower on the day ofthe accident, and the Betacom employees could not discover the fact for themselves. It is undisputed that no one Hom Cingular was on the tower site on the day of the 18 Case Document 118 Filed 05/06/08 Page 22 of 33 accident. Cotton and Wheeler, on the other hand, were working on the site, and they knew that the ALT crew was on the site too. As between Cingular and the Betacom employees, the Betacom employees had superior knowledge ofthe circumstances at the tower site on the day of the accident. The Betacom employees were in the best position to know whether someone was on the tower, a situation that would have been obvious had Wheeler and Cotton bothered to look at the tower or ask. Wheeler and Cotton knew that if the ALT crew was on the tower, something might fall from the tower. Tab 2, p. 100. Consequently, as a matter of law, Cingular did not have a duty to tell Cotton that ALT was on the tower and that something might fall from the tower. B. This Case Does Not Fall Within the "Control" Exception to the "No Du?' Rule because Plaintiff Cannot Prove by Substantial Evidence that Cingplar Controlled the Marmer in which the Independent Contractors at the Tower Site Perfonned their Work. Plaintiff has not presented substantial evidence of control that would bring this case within the exception to the "no duty" rule. QE, 602 So. 2d 892 ("the general rule does not apply if the premises owner retains or reserves the right to conn?o1 the manner in which the independent contractor performs its work"). "[T]he issue presented is whether . . . [the premises owner] retained the right to 19 Case Document 118 Filed 05/06/08 Page 23 of 33 direct the mcmner in which [the contractor] performed its work." Pate v. U.S. Steel 393 So. 2d 992, 994 (Ala. l981)(emphasis supplied). The record demonstrates that Betacom and ALT made their own decisions about how to perform their conuactual obligations. Betacom's Supplier Agreement gives Cingular the right to inspect Betacom's work. Cingular's field engineer, Don Stoehr, visited the site to assess the progress of the equipment work. Tab 2, pp. 57-58, 403-10. Wheeler admits that, "Don never told me how to do my job, no." ld, at 420. The project manager for the equipment work on the Talladega job gave Wheeler the floor plans for the equipment placement over the phone. He did not visit the site. at p. 60, 63, 423-24. There is no evidence that Cingular selected the rope for rigging the tower or told ALT how to secure the rope to the antennas. It is imdisputed that Cingular does no tower work. Betacom updated Cingular on the status of the equipment work on daily conference calls, and Cingular held a weekly conference call during which all of the project managers for all of the tower upgrades in Alabama discussed the status of the various projects. at 410-1 1. Cingular required the contractors working at the Talladega site to comply only with the connact for the upgrade and to meet the proj ect 20 Case Document 118 Filed 05/06/08 Page 24 of 33 deadlines. This level of oversight does not constitute control over the manner in which the independent contractors performed their contractual obligations. The mere retention by the owner ofthe iight to supervise or inspect work of an independent contractor as it progresses, for the purpose of determining whether it is completed according to plans and does not operate to create the relation of master and servant between the owner and those engaged in the work. This rule is not altered by the fact that the owner may stop work that is not properly done. Lrg, 393 So. 2d at 994 (emphasis supplied) (quoting 41 Am.Jur.2d Independent Contractor ?10 (1968)); ga; 858 F. Supp. at 1006 (applying Alabama law and granting owner's motion for summary judgment because premises owner did not owe duty to provide safe workplace where "[t]he only evidence of [the owner's] direct participation in the proj ect is that [the owner's] engineers visited the construction site daily to monitor [contractor' s] progress and to insure that the construction complied with the specifications contained in the contract It is clear that the general rule in Alabama is that the mere monitoring of work of an independent contractor does not constitute control"); Stovall v. Universal Construction Company, 893 So. 2d 1090 (Ala. 2004)(rej ecting plaintiffs claim that contractor controlled subcontractor's work because contractor supplied lighting that subconuactor used to work at night; "Indeed, the very essence of the contractor/subcontractor relationship hinges on the contractor's allowing the subcontractor to do his work without interference. The mere fact that Turner 21 Case Document 118 Filed 05/06/08 Page 25 of 33 contracted to provide Penwal employees with lighting in no way translates into an automatic reservation of control over how that lighting is judgment affirmed). Moreover, there is no substantial evidence that Cingular endeavored to control the safety measures that the various contractors at the Talladega site employed. In 2005, Cingular issued a policy letter concemi11g contractor safety which provides that, is the policy of Cingular Wireless that every contractor (and subcontractor) must have a safety program that assures compliance with all applicable safety regulations and Cingular requirements. All contractors who work for Cingular must have (1) A safety program that establishes sound, deinite and comprehensive safety measmes commenstuate with the project [a11d] (2) Appropriate safety--related 11?aining." Tab 7, Ex. 8. The tmdisputed evidence demonstrates that the independent contractors at the Talledega site took responsibility for the safety of their employees. Wheeler had a Betacom safety policy manual that he received from Betacom in 2005. Tab 2, pp. 44-45. The Betacom safety policy states that, is the responsibility of the individual employee to know and follow the safety practices for any duty beir1g perfonned, whether or not that duty is part ofthe employee's regular job." Tab 2, Ex. 8 ?l.02. Furthermore, "It is the policy of the [Betacom] . . . to provide and maintain proper safety throughout its operations. It is expected that each supervisor will i 22 Case Document 118 Filed 05/06/08 Page 26 of 33 immediately take reasonable steps to resolve any problem or potential problem concerning safety and health of the emp1oyee." Ld, at ?1.03. Wheeler admitted that he was responsible for the safety of his crew. LQ at 428. He did not have safety meetings with his crew because Betacom does not require them. at 121- 22. The ALT crew had daily safety meetings and submitted daily safety reports to ALT. Tab 3, 29, 32, 34-36, 213-14 As a matter of law, "a 'general administrative responsibility for company- wide safety' is insufficient to End liability for failure to provide a safe workplace."' @yg1_1, 893 So. 2d at 1098 (Ala. 2004)(quoting Kennemer v. 470 So. 2d 1113, 1117 (Ala. 1985)). Cingular's policy letter regarding contractor safety does not give rise to a duty to control all of the safety issues on the tower worksite. 858 F. Supp. at 1107-08 (granting summary judgment where the owner supplied a safety manual to each contractor at its job site and required compliance with the provisions of the manual; "With the exception of general safety requirement, such as requiring all workers entering the plant to have a hard hat, steel toe boots and glasses, Daniels received no other direct safety instructions Eom Mead The contract between Mead and CBI dictated that CBI was required to follow the safety standards maintained at the Mead location while CBI was performing their work. As a result of the provisions 23 Case Document 118 Filed 05/06/08 Page 27 of 33 of the contract, Mead had the right to order CBI to maintain certain standards of safety, but holding the right, Mead did not acquire a duty to do C. The Inherently Dangerous Activig; Exception to the "No Dug;" Rule Does Not Apply in this Case because Construction Work is not Inherently Dangerous if an Independent Contractor Exercises Proper Care. In the absence of substantial evidence of control, an owner may owe the employees of an independent contractor a duty when the work to be performed "is an inherently and intrinsically dangerous activity." ?gp_ Pope, 602 So. 2d at 892 ("Pope argues that the City and the Board were liable because the excavation work being performed was inherently dangerous"). The Alabama Supreme Court has found that construction activities are not inherently or intrinsically dangerous. 'Ordinary building operations or activities, including both construction and demolition, are generally not considered work of an inherently or intrinsically dangerous character rendering the employer->owner liable for injuries resulting from the negligence of an independent contractor in doing the work 41 Am.J1u?.2d Independent Contractors, 43.' Again, the work or undertaking being by no means necessarily dangerous, if proper care were exercised in its execution, any negligence in its prosecution (if any such there was) was merely in the mode and manner in which the contractor or his agents or servants were performing the work; and for this reason the defendant was not liable. Bacon v. Dixie Bronze Co., 475 So. 2d 1177, 1181-82 (Ala.1985); Stovall, 893 So. 2d at 1099 ("We cannot say that any work done by Elee on the nightof his death constituted 'intrinsically dangerous' work. First, common sense 24 Case Document 118 Filed 05/06/08 Page 28 of 33 dictates that painting f1?om a ladder is simply not dangerous work, so long as the most rudimentary care is taken. Thus, this is not the sort of work where there is some risk of injury even when the worker exercises the utmost care and attention"); gpg, 602 So. 2d at 893 (consuuction work "would not be intrinsically dangerous if it had been performed with the exercise of reasonable care, and diligence" so premises owner did not have a non--delegable duty to ensme the safety of its premises); ggig Boroughs v. Joiner, 337 So. 2d 340, 342 (Ala. 1976)(landowner may be held liable for negligence of cropduster because aerial application of insecticides by an independent contractor is an inherently dangerous activity; "The Legislatme of Alabama has recognized that insecticides and pesticides are intrinsically dangerous and has adopted statutes regulating the sale, distribution and application of those products in this Bankers Fire Marine Ins. Co. v. Bukacek, 271 Ala. 182, 190, 123 So. 2d 157, 164 (l960)(use of dynamite). Plaintiff has offered no evidence to prove that perfomiing ground-level equipment work at a cell tower site is intrinsically or inherently dangerous if proper care is taken in the performance of the con1ractor's duties. The concrete equipment shelter in which Cotton and Wheeler worked was located beside the tower. Wheeler and Cotton lmew that objects might fall from the tower. Tab 2, p. 429. Nevertheless, neither Cotton nor any of the other three Betacom crew 25 Case Document 118 Filed 05/06/08 Page 29 of 33 members who walked out of the building on the day of the accident looked up at the tower as they walked out of the equipment building into the drop zone not even the two crew members who arrived at the site after the tower was rigged and who admit that they knew that the ALT crew was overhead. In violation of Betacom's safety policy, none of the Betacom crew members bothered to bring their hard hats to the equipment building, much less wear them as they walked from the building across the drop zone. Moreover, there is no evidence that, when Josh Cook went into the equipment building where Cotton was working on Friday, March 10, either Wheeler or Cotton asked Cook whether the ALT crew would be working on the tower, even though Wheeler and Cotton knew that (1) the Talladega race was approaching, (2) the bad weather that had prevented the ALT crew nom climbing the tower the day before had passed and (3) Cook had informed Wheeler the day before the accident that ALT would not be working on the tower at night. Wheeler that he never asked the ALT employees when they were going to work on the tower. Tab 2, p. 83. Given these circumstances and the fact that Wheeler, by his own admission, was responsible for the safety of his crew, it is clear that if Cotton or Wheeler had taken the slightest care in the performance of their duties, they would have been able to cross the tower premises safely. Therefore, as a matter of law, the equipment work that the Betacom crew performed at the Talladega site was not intrinsically dangerous. 26 Case Document 118 Filed 05/06/08 Page 30 of 33 IH. THE ELEVENTH CIRCUIT DOES NOT RECOGNIZE THE- MULTI- EMPLOYER DOCTRINE., AND OSHA HAS ABANDONED THE DOCTRINE. Finally, Plaintiff has suggested that Cingular may owe a duty to Cotton under the now-defunct "mu1ti-employer doctrine." The Eleventh Ci1?cuit Comt of Appeals does not recognize the doctrine. The multi-employer doctrine, initially formulated by the OSHA Review in Grossman Steel Aluminum Corp., 4 BNA OSHC 1185, 1188 (N o. 12775, 1976), extended OSHA liability beyond an employee's immediate employer to general contractors or others who had "supervisory capacity" at a jobsite and could "reasonab1y have been expected to prevent or abate" OSHA violations by reason of such supervisory capacity. Q. The OSHA Review Commission struck down the multi-employer doctrine last year, holding that 29 C.F.R. ?l9l0.l2(a) does extends responsibility for the safety of an employee on a construction site only to his or her inunediate employer. 29 C.F.R. ?1910.12(a) states: The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph. 27 Case Document 118 Filed 05/06/08 Page 31 of 33 29 C.F.R. ?1910.l2(a) (emphasis added).? The Eleventh Circuit Court of Appeals never recognized the multi-employer theory. In Jeter v. St. Regis Paper Co., 507 F.2d 973 (Sth Cir. 1975), an employee of an independent painting contractor who was injured while painting a chemical silo brought an action against the owner of the silo, alleging that the owner owed him a duty to ensure a safe worksite pursuant to OSHA. The court disagreed. No cause of action. . .can be implied under OSHA to nm in favor of a person who was not an employee of the violator against whom recovery is sought. . ..[The silo owner] owes no duty to [the plaintiff] under OSHA. There being no duty, there can be no breach. The district court was correct in not submitting this theory of action to the jury. Jeter, 507 F.2d at 977; Barrera v. E.I. Du Pont de Nemours and Co., Inc., 653 F.2d 915, 920 (5th Cir. Aug. 14, 198 l)(in pipefitter's action against DuPont for injuries received on the worksite, district court erred in charging the jury that OSHA imposed a duty on DuPont "to finnish invitees, such as the Plaintiff, places of employment which are free hom recognized hazards . . . OSHA does not create duties between employers and invitees, only between employers and their employees; and it has long been settled in this The Secretary of Labor appealed the decision to the United States Court of Appeals for the Eighth Circuit. That case, styled Elaine Chao v. Summit No. 07-2191, remains pending. 28 Case Document 118 Filed 05/06/08 Page 32 of 33 circuit that, even between these latter, it creates no private cause of Because Plaintiff has not, and indeed cannot, prove by substantial evidence that Cingular, the owner of the tower project and occupier of the tower site, owed a duty to Cotton, an employee of independent contractor Betacom, Cingular is entitled to summary judgment on Pla.intiff's premises liability claim. CONCLUSION Defendant Mobility, LLC (formerly Cingular Wireless, LLC) respectfully asks the Court to grant Mobility's Motion for Stunmary Judgment. Madeline H. Haikala One of the Attorneys for Defendant Mobility, LLC OF COUNSEL: Patrick R. Norris Jere F. White 3300 Vestavia Centre Madeline H. Haikala 2090 Columbiana Rd. Enrique J. Gimenez Birmingham, AL 35216 Lightfoot, Franklin White, L.L.C. 400 20th Street North 7 In Bomier v. Cigg of Prichard, 661 F.2d 1206, 1209 (1 Cir. 1981), the Eleventh Circuit adopted as precedent all decisions from the former Fifth Circuit prior to October 1, 1981. 29 Case Document 118 Filed 05/06/08 Page 33 of 33 Birmingham, AL 35203 CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been electronically filed on this the day of May, 2008 with the Clerk of the Court using the system which will send of such tiling upon the following. If Notice of Electronic Filing indicates that Notice needs to be delivered by other means to any of the following, I certify that a copy will be sent via U.S. Mail, properly addressed, postage prepaid. Clay J. Thomason James A. Shands Thomason-Maples LLC 205- 20'h Street North Box 627 Suite 500 Bessemer, AL 35021 Birmingham, AL 35203 M. Keith Gann Charles P. Gaines I Huie, Femambucq Stewart, LLP Gaines, Gaines Rasco Three Protective Center P. O. Box 275 2801 Highway 280 South Talladega, AL 35160 Suite 200 Birmingham, AL 35223 Edward Johnson Demiis G. Pantazis J. Mitchell Frost, Jr. Wiggins, Childs, Quinn Pantazis Neal D. Moore, The Kress Building Ferguson, Frost Dodson, LLP 301 19th Street North 2500 Acton Road, Suite 200 Birmingham, AL 35203 Birmingham, AL 35243 Richard E. Broughton Joseph L. Dean, Jr. Ball, Ball, Matthews Novak Dean Barrett P. O. Box 2148 457 South 20"' Street Montgomery, AL 36109-5413 Opelika, AL 36803-0231 Madeline H. Haikala OF COUNSEL 30