Southern Bell Telephone & Telegraph Co. v. Barnes
Southern Bell Telephone & Telegraph Co. v. Barnes
Opinion of the Court
Defendants Southern Bell and Bumup & Sims, Inc. appeal a summary judgment as to the issue of liability entered in favor of plaintiff Lawrence Barnes in this personal injury action.
Lawrence Barnes filed a complaint and an amended complaint naming as defendants Southern Bell, Burnup & Sims, Fred Rust, Edward Toy and Florida Power &
Southern Bell and Burnup contend there remain genuine issues as to material facts precluding the entry of summary judgment. We find this point well taken.
Reviewing the facts in a light most favorable to Southern Bell and Burnup, we find the existence of factual issues with respect to the following:
First, whether or not Toy’s status was that of an independent contractor or a borrowed servant. Toy’s deposition testimony reflects that he was in complete charge of the operation of the crane; he had the authority to stop work, and the right to refuse to continue in the event he felt the operation was hazardous. The affidavit of John Benson supports Toy’s testimony that the crane is under his exclusive control. Thus, it is for the jury to determine whether Toy was in fact an independent contractor or a borrowed servant. See, e. g. King v. Young, 107 So.2d 751 (Fla.2d DCA 1958); Gregg v. Weller Grocery Co., 151 So.2d 450 (Fla.3d DCA 1963).
Second, it is disputed whether plaintiff Barnes himself was contributorily negligent. In his deposition Barnes testified that he had worked as an apprentice lineman and was somewhat knowledgeable about the potential dangers of high tension power lines. Being an oiler, he knew that a crane was not supposed to be operated within six feet of a high tension power line and that he was not supposed to touch the crane when it was in close proximity to such a line. Hence, the question of whether Barnes was contributorily negligent or assumed the risk is for the jury to decide. See Embry Riddle Co. v. Carrodus, 207 So.2d 472 (Fla.3d DCA 1968); Weedman v. Sunland Roller Rink, Inc., 323 So.2d 688 (Fla.3d DCA 1975).
Third, there is an issue as to whether Burnup is immune from liability pursuant to Sections 440.10, 440.11, Florida Statutes (1971) in that Burnup alleges it was a general contractor under and pursuant to a general contract with Southern Bell and that part of the work was subcontracted to Leonard Brothers and, therefore, it was immune under the above workmen’s compensation statutes. The contractual relationship between Southern Bell and Burnup not
Summary judgment is reversed.
. In whose favor a separate summary judgment was granted.
Reference
- Full Case Name
- SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY and Burnup & Sims, Inc. v. Lawrence BARNES and Patsy Barnes, his wife
- Cited By
- 1 case
- Status
- Published