917 F2d 27 Bagge v. Baxter

917 F.2d 27

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Douglas BAGGE and Pamela Bagge, Plaintiffs-Appellants,
John BAXTER, David Fisk, Clyde Knowles, Robert Kunzer,
Brotherhood of the Paternal Order of Elks, White
Salmon Lodge, Four John Does, and Four
Richard Roe Corporations,

No. 89-35662.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 14, 1990.
Decided Oct. 22, 1990.

Before CANBY, KOZINSKI and TROTT, Circuit Judges.

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This is a tort action against three roof repairmen and an Elks Lodge. Plaintiffs, husband and wife, appeal the District Court's grant of summary judgment in favor of defendants, claiming there was evidence to support four theories of liability arising out of an accident in which a sixty pound bundle of roofing felt fell off the roof of the Elk's Lodge, hitting Mr. Bagge in the head, and causing him brain damage.


Bagge worked for Tum-A-Lum Lumber Company, which makes "roofing felt" for roof repair. On the day of his injury, he and a co-worker were delivering roofing felt to repairmen from another company who were patching the roof of the Elks Lodge. To get the sixty pound bundles of felt onto the roof, the Tum-A-Lum men ran a conveyor belt up to the roof's edge, where the repairmen waited to receive the goods. The Elks Lodge has a high roof, so the belt had to be erected at a steep angle to reach its destination. The repairmen, who watched from the roof while appellant's co-worker set the belt in place, suggested that the incline was too steep to be safe. Appellant's co-worker replied that he had done it that way before and they should give it a try. The repairmen assented, and 48 rolls of felt were then conveyed to the rooftop, before one mysteriously fell off the belt and hit appellant in the head. Appellant's theory is that the mishap was caused by one of the repairmen on the roof, who must have jostled the belt from above. Appellant conceded below that there was no evidence the accident happened this way. Instead, he advanced several theories of liability that entail relaxed evidentiary standards once a certain legal conclusion is reached.



The Concerted Negligence Theory


Bagge asserts the repairmen acted negligently in concert with his co-worker by helping him to position the conveyor belt at an unsafe angle. The Washington Supreme Court has held that to succeed on a "concerted activity" theory, a plaintiff "must show a tacit agreement among defendants to perform a tortious act." Martin v. Abbott Laboratories, 102 Wash.2d 581, 689 P.2d 368, 377-78 (1984). Appellant has mustered no facts tending to show such an agreement. As appellees correctly observe, the repairmen did little more than acquiesce in the ill-fated decision to use the belt. It would appear that if anyone was negligent it was Bagge's co-worker, not the repairmen.


Appellant relies on Thomas v. Casey, 49 Wash.2d 14, 297 P.2d 614 (1956). In that case, defendants were pulling a car out of a ditch by using a second car, when plaintiff drove around the bend and crashed into the second car. The owner of the car being extracted was found to have acted in concert with the defendant rescuers, since he had had "possession and control of his car" and could have called off the rescue attempt at any time. Id. at 617. In the present case, by contrast, there was no such concerted activity by defendants; they merely looked on as the Tum-A-Lum team raised the conveyor belt. The team had brought the belt with them to the site and it was primarily in their control at all times. The fact that the repairmen anchored the belt to the roof's edge once it was in place does not indicate they were in tacit agreement that a tortious act should be committed; indeed, they warned the Tum-A-Lum team that the operation might be dangerous. Appellant's claim of concerted tortious activity is meritless.


The Res Ipsa Loquitur Theory


Three criteria must be met before the doctrine of Res Ipsa Loquitur applies:


"(1) the occurrence of the injury must be of a kind which ordinarily does not occur in the absence of negligence; (2) the injury is caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the injury-causing occurrence must not be due to any contribution on the part of plaintiff."

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Jackson v. Wash. State Cr. Justice Training, 43 Wash.App. 827, 720 P.2d 457, 460 (1986) (citations omitted). The District Court correctly found that appellant's co-worker, and not the repairmen, had exclusive control over the belt, and that the second prong of the test was thus lacking. Appellant cites cases to the effect that control exercised by a putative defendant need not be absolutely exclusive, but this is beside the point, since defendants in this case barely exercised any control at all. As the District Court found, "[a]t best there existed joint control between plaintiff, his co-worker, and the defendants over the elevator." This finding pulls the props out from under appellant's res ipsa loquitur theory.


Vicarious Liability


Appellant's theory that the Elk's are vicariously liable depends on an initial determination that the roof repairmen were negligent. The negligence claim fails as a matter of law, so the vicarious liability theory is meritless.


The Inherently Dangerous Work Site Theory


Finally, appellant relies on the common law doctrine that the owner of a work site is liable for injuries caused by inherently unsafe working conditions. Kelly v. Howard S. Wright Const. Co., 90 Wash.2d 323, 582 P.2d 500, 506 (1978) (en banc). The employer in Kelly, who was found negligent, had forced its employees to walk across a bare beam suspended twenty-five feet in the air. Id. Here, the district court correctly decided there was no evidence "to support plaintiff's position that raising rolls of felt 20 feet to the roof is inherently dangerous so as to impose the common law nondelegable duty on Elks." The conveyor belt was normally a safe instrumentality with which to transmit felt bundles to rooftops. Indeed, appellant's co-worker explained that he had used the belt hundreds of times without incident. It was only through misuse that the belt became dangerous.



The District Court's grant of summary judgment is therefore




This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3