JUNO INDUSTRIES, INC., et al., Faye C. Hefner and Donna Kevech, Appellants,
HEERY INTERNATIONAL, etc., et al., Appellees.
[Copyrighted Material Omitted]
Patricia M. Gibson of Maher, Gibson & Guiley, P.A. and Dennis J. Wall, Orlando, for appellants Faye Hefner, Donna Kevech and Bill Bielawski.
Judith J. Flanders of Lane, Trohn, Clarke, Bertrand, Vreeland & Jacobson, P.A., Lakeland, for appellant Juno.
David A. Higley of Higley & Barfield, P.A., Maitland, for appellant Plexco.
John C. Briggs of Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A., Orlando, for appellee Heery Intern., Inc.
Robert E. Bonner of Eubanks, Hilyard, Rumbley, Meier and Lengauer, P.A., Orlando, for appellees Walt Disney World Co. and Walt Disney Imagineering, Inc.
This case involves a consolidated appeal in a personal injury case. Because the parties and the issues arise out of the same personal injury lawsuit, they have been consolidated for purposes of appeal. We have jurisdiction. Fla.R.App.P. 9.030(b)(1)(A) & 9.110(k); see Aagaard-Juergenson, Inc. v. Lettelier, 540 So.2d 224, 224-25 n. 1 (Fla. 5th DCA 1989). The plaintiffs below, the personal representatives of the estate of Lawrence E. "Buddy" Hefner, Faye C. Hefner, and William Bielawski, III, along with cross-claimants below, Plexco, a Division of Amstead Industries, Inc. (Plexco) and Juno Industries, Inc. ("Juno"), appeal the final summary judgment granted in favor of defendants Heery Engineering, Inc.  ("HE"), Heery Program Management, Inc. ("HPM"), Heery International, Inc.  ("HI"), Walt Disney World Co. and Walt Disney Imagineering, Inc. ("Disney"). We affirm in part and reverse in part.
HISTORY OF THE CASE
On 25 April 1988, Buddy Hefner and Bill Bielawski were working construction on the Typhoon Lagoon project at Disney World. They were employees of a general contractor, Frank Irey, Jr., Inc. ("Irey"), on bid package 2A for the project which included process piping for the flume rides. A 22-inch polyethylene pipe which was being pneumatically (air) tested came apart at a fused weld and whipped around striking Hefner and Bielawski. The pipe failed due to a "cold fusion" which results from the polyethylene not becoming hot enough before the ends of the pipe are merged together. Hefner was killed and Bielawski injured.
HI, the parent company of HE and HPM, contracted with Disney to provide design and engineering services for the project. HE performed the engineering services for the project under the contract between HI and Disney. HPM entered into a separate contract with Disney to provide program management/construction manager services for the project. Irey was the general contractor on bid package 2A, the portion of the project this case concerns. Irey ordered the pipe from Juno, who, in turn ordered the pipe from Plexco, the pipe manufacturer; Juno then used a fusion machine to weld the pipe together. The pipes were then left for Irey to install. The pipe had to be pressure tested to check the fusion welds after installation in the trenches.
HE prepared contract specs which called for hydrostatic (water) testing of the pipe in accordance with American Water Works Association (AAWA) standard C600-77 and for
backfill to be installed along the pipe to prevent displacement during pressure testing. Plexco's manual also called for water testing and backfilling before pressure testing unless otherwise specified by the engineer. However, Irey tested the pipe using air without backfilling first. Backfilling is simply covering the pipe to be tested with either soil or cement, except at the joints. The joints are left exposed to see if there is any failure of the joints. Backfilling prevents the pipe from becoming unstable if there is a failure. Irey used air rather than water to test the pipe because no water was available on the site and Irey did not want to truck water to the site. Prior to conducting the air tests, according to William Irey, vice president of Frank Irey, Jr. Inc., Irey discussed the possibility of substituting the air testing for water testing and authorization was granted either from one of the Heery companies or from Disney. He recalled speaking with Roger Ellis of HE about the change in testing procedures. Ellis was HE's employee in charge of inspection services and engineering services. His job was to be sure that the site was built to HE's specifications. He was HE's quality control representative on the site. Ellis remembers the conversation with Irey and did not object to the change of testing mediums.
The plaintiffs filed complaints which were amended prior to the entry of final summary judgment by the trial court. The second amended complaints allege causes of action in strict liability and negligence against Juno, and negligence counts against Plexco, all Heery defendants and Disney. Juno and Plexco each filed cross-claims for contribution against all Heery defendants alleging that one or more of them were negligent in authorizing the substitution of air testing for water testing, causing the plaintiffs' injuries. The question the lawsuit presented to the trial court was who had the responsibility by contract, by their actions or by common-law for the safety of the workers? Which entity or entities owed a duty to the workers? Which entity or entities violated that duty? More precisely, who was responsible for safety at the time the test was conducted and who authorized the change from water testing to air testing? Expert testimony established that air testing is more dangerous because air can be compressed and water cannot. Compression allows air to store a great deal more energy and creates a potential for a more violent failure than water testing, which is why Plexco's literature and HE's specifications require water testing.
On 28 July 1992, each of the Heery and Disney defendants moved for summary judgment on the basis that they owed no duty to the plaintiffs. On 14 December 1992, the trial court granted HPM's motion. On 26 January 1993, the court granted Disney's motions. On 1 February 1993, the court granted HE's and HI's motions. The court based each of the summary judgment rulings on the finding that none of the Heery or Disney defendants owed any of the alleged duties to the plaintiffs. On 26 February 1993, the court granted the Heery defendants' motion for summary judgment as to Juno's cross-claim on the basis that, since the court had granted Heery's motions as to the plaintiffs, Heery could not be subject to Juno's cross-claim for contribution. On 8 March 1993, the trial court entered final summary judgment in favor of all the Heery and Disney defendants and, consequently, dismissed Plexco's cross-claims with prejudice. In ruling on the motion, the court considered the contracts involved and several depositions regarding the conduct of HE and HPM. This court must determine whether the summary judgments were improvidently entered.
I. SUMMARY JUDGMENT IN GENERAL
The party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). The burden of proving the existence of such issues does not shift to the party opposing summary judgment until the movant has successfully met its burden. Id. at 43-44. "If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it." Moore v. Morris, 475
So.2d 666, 668 (Fla.1985). The trial court may not determine factual issues nor consider either the weight of the conflicting evidence or the credibility of witnesses in determining whether a genuine issue of material fact exists in a summary judgment proceeding. State v. West, 262 So.2d 457, 458 (Fla. 4th DCA 1972) (quoted in Security First Fed. Sav. & Loan Assoc. v. Broom, Cantrell, Moody & Johnson, 560 So.2d 304, 307 (Fla. 1st DCA 1990), disapproved on other grounds, Garden v. Frier, 602 So.2d 1273, 1277 n. 10 (Fla.1992)); see also Aagaard-Juergenson, 540 So.2d at 225.
II. SUMMARY JUDGMENT AS TO DISNEY
As to Disney, the trial court's ruling granting summary judgment was proper; there is no genuine issue of material fact. The appellants pled that Disney was liable based upon two general theories: Disney actively participated in the construction of the Typhoon Lagoon project and became responsible for the safety of the employees on the work site, and; Disney was vicariously liable for the decisions of HPM that allowed changes in the testing method and the curvature of the pipe. In this case, the written contract between Disney and Irey clearly shows that Irey was the independent contractor responsible for the safety of the 2A phase of the project. The contract between Disney and Irey provides:
4.3 LIMITATIONS ON RESPONSIBILITY. The Engineer shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs, in connection with the Work, and it shall not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Engineer shall not be responsible for the acts or omissions of the Contractor, and Subcontractors, any of their agents or employees or any other persons performing any of the Work.
. . . . .
5.2.1 The Contractor shall supervise and direct the Work using its best skill and attention. The Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures, and for all safety precautions and programs, in connection with the Work as well as for coordinating all portions of the Work.
Additionally, ARTICLE 10 "PROTECTION OF PERSONS AND PROPERTY," Section 10.1 "RESPONSIBILITY FOR PERSONS AND PROPERTY," provides:
10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. The Contractor shall take all precautions and follow all procedures for the safety of, and shall provide all protection to prevent injury to, all persons involved in any way in the Work and all other persons, including without limitation the employees, agents, guests, visitors, invitees and licensees of the Owner who may be affected thereby. These precautions shall include, but in no event be ...