J. D. Williams v. Fenix & Scisson, Inc.

608 F.2d 1205 J. D. WILLIAMS, Plaintiff-Appellant, v. FENIX & SCISSON, INC., Defendant-Appellee. No. 76-1452. United States Court of Appeals, Ninth Circuit. Sept. 24, 1979. Lester W. Miller, Anchorage, Alaska, for plaintiff-appellant. Burr, Pease & Kurtz, D. A. Burr, Anchorage, Alaska, for defendant-appellee. Appeal from the United States District Court for the District of Alaska. Before WRIGHT, KENNEDY and TANG, Circuit Judges. TANG, Circuit Judge. 1 This is an appeal from the judgment of the district court denying plaintiff's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Jurisdiction exists pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1291 . We affirm. 2 The plaintiff, J. D. Williams, was injured while working on a drilling rig at Amchitka Island, Alaska. He sued Fenix & Scisson, Inc. for negligence, alleging Fenix & Scisson had undertaken a duty both voluntarily and contractually to oversee and supervise his work. At the close of trial, the trial judge ruled that Fenix & Scisson had no contractual duty toward the plaintiff; hence, the issues presented to the jury were whether Fenix & Scisson had…

This is an appeal from the judgment of the district court denying plaintiff’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Jurisdiction exists pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1291 . We affirm.

The plaintiff, J. D. Williams, was injured while working on a drilling rig at Amchitka Island, Alaska. He sued Fénix & Scisson, Inc. for negligence, alleging Fénix & Scis-son had undertaken a duty both voluntarily and contractually to oversee and supervise his work. At the close of trial, the trial judge ruled that Fénix & Scisson had no contractual duty toward the plaintiff; hence, the issues presented to the jury were whether Fénix & Scisson had voluntarily assumed a duty to the plaintiff to oversee his work; whether Fénix & Scisson was negligent in performance of that duty; and whether the negligence proximately caused the plaintiff’s injury. The jury returned a verdict in favor of the defendant.

Plaintiff’s motion for judgment n.o.v. or, in the alternative, for a new ■ trial were denied. On appeal, the plaintiff urges that the trial court erred in two respects. First, he alleges that the trial court improperly ruled on the issue…

concurring:

I concur in the judgment, but my approach to the case differs in significant respects from that set forth in the opinion for the court. The plaintiff’s claim in the district court was that the defendant was guilty of tortious conduct. Under one theory advanced by plaintiff, the obligation to supervise arose because Fénix & Scisson (F&S) voluntarily assumed it. This issue was submitted to the jury; it found for the defendant; and plaintiff has not appealed this aspect of the case. A second rationale for establishing the tort obligation was that F&S undertook by contract to supervise in detail the safety aspects of Parco’s drilling operations. My disagreement with the court’s opinion is with its conclusion that to succeed the plaintiff must show that it was an intended beneficiary of the contract provisions. That inquiry, I respectfully sub *1210 mit, is irrelevant under Alaska tort law, which controls here. If the contract between the AEC and F&S obligated it to undertake detailed supervision over the safety aspects of Parco’s drilling performance, and if F&S was negligent in performing this duty, then liability arises whether or not plaintiff can be characterized as…