FILED

May 19, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS

AT KNOXVILLE

LARRY DEMPSEY and wife, LISA ) HAMILTON CIRCUIT

DEMPSEY, Co-Administrators of ) C. A. NO. 03A01-9709-CV-00436

the Estate of Larry Jason ) 

Dempsey, )

 )

 Plaintiffs-Appellants )

 )

 )

 )

 )

 )

vs. ) HON. SAMUEL H. PAYNE

 ) JUDGE

 )

 )

 )

 )

 )

INTERNATIONAL ASSOCIATION OF ) AFFIRMED AND REMANDED

BRIDGE, STRUCTURAL AND ORNAMEN- )

TAL IRONWORKERS, LARRY G. DAVIS,)

individually and as agent and )

employee of the International )

Association of BRIDGE, )

Structural and Ornamental )

Ironworkers, KIRBY BUILDING )

SYSTEMS, INC., FREELAND HARRIS, )

d/b/a Freeland Harris Consulting)

Engineer and DONALD LOUIS WAMP, )

d/b/a The Wamp Alliance, )

 )

 Defendants-Appellees )

L . HALE HAMILTON, Spears, Moore, Rebman & Wi llia ms, Chattanooga,

for Appellants.

DANIEL J. RIPPER and GERARD M. SICILIANO, Luther - Anderson, PLLP,

C h attanooga and LYNN AGEE and LEE ANDERSON, Agee & Allen ,

Chattanooga, for BRIDGE, Structural and Ornamental Ironworkers,

Local 704, Chattanooga Ironworkers Joint Apprentice Committee and
2

Larry G. Davis, indiv idually and as an agent and employee of the

Union the Joint Apprentice Committee.

DONALD LOUIS WAMP, SR., Pro Se.

O P I N I O N

McMurray, J.

This is a wrongful death action. The plaintiffs cha rge

generally that the defendants failed to provide a safe place for

the decedent to work or were negligent or breached a contract with

the deceased in failing to train or supervise him whil e he was

attempting to do the work he was assigned. The trial court granted

summary judgments or motions to dismiss in favor of all the

defendants. This appeal resulted. We affirm the judgment of the

trial court.

FACTS

Kenco Group, Inc., (Kenco), at the time of the accident in

question was the owner of a parcel of land upon which a building

was to be constructed. Kenco contracted with Morgan Construction

Company (Morgan) to construct a warehouse building on its property.

Morgan entered into a subcontract with Burroughs Metal Buildings,
1

Travelers Insurance Company, the Worker's Compensation carrier for Burroughs

was allowed to intervene, however, there is no issue relating to Travelers on this

appeal. (Reliance Insurance Company was subsequently substituted in p lace of

Travelers.)

3

Inc., (Burroughs), the deceased's employer, for installation of the

roof on the building. 1

Burroughs sought to obtain employees to work on the Kenco

Project from Local 704 of the BRIDGE, Str uct ural and Ornamental

Ironworkers Union (Union). The Union and its employees, agents and

o rganizations will be referred to collectively as the "U nio n

defendants." Under the applicable Union contract, if the Union

could not timely provide workers, the employ er was allowed to

directly employ workers without Union intervention. The Union was

unable to supply workers for Bur rou ghs. Burroughs hired the

deceased, Larry Dempsey, and advised him to go to the Union school

and fill out the necessary documents to apply for the union

apprenticeship program. The deceased eventually went to the school

and obtained the necessary application documents, however, he did

not return all the documents to the Union.

While working on the K enco project, the deceased fell

approximately 35 feet from the roof onto the floor of the building.

H e died from the injuries sustained in the fal l. At t he time of

his injury and death, the deceased had not been accepted into the
4

apprentice program and had never attended the Union's apprenticeship program.

The defendant, Donald Louis Wamp, d/b/a The Wamp Alliance

(Wamp) w as employed to do the architectural drawings for the

building. There was no express contract by which Wamp was required

to perform any other duties.

The defendant, Larry G. Davis, (Davis) was sued in his

individual capacity and as an agent and employee of the Union.

Additionally, the plaintiffs sought, by amendment, t o ma ke Steve

King, individually and as an agent of the Union, a defendant in

this action. Mr. King was allegedly an agent of the Union's Joint

Apprenticeship Committee of Local 704. The court denied the motion

to amend.

The defendant, Freeland Harris, d/b/a Freeland Harris

Consulting Engineer was vo lunt arily dismissed by the plaintiffs.

All other parties moved either for summar y j udgment pursuant to

Rule 56, or to dismiss pursuant to Rule 12, Tennessee Rules of

Civil Procedure. Pursuant to the motions, summary judgments were

granted in favor of all defendants except the Unio n d efendants.

The complaint as to the Union defendants was dismissed pursuant to
2

A third party complaint by Kenco against Morgan and Burroughs was dismissed

as being moot after the dismissal of Kenco.

5

Rule 12, Tenness ee Rules of Civil Procedure. 2 Plaintiffs charge

that the action of the court in disallowing the King amendment and

i n dismissing the case was reversible error. Specifically, the

plaintiffs present the following issues for our review:

I . Did the trial court err in gra ntin g summary judgment for defendants Local 704 of International

Brotherhood of BRIDGE, Structural and Ornamental

Ironworkers; Larry Davis, individually and as agent

o f Local 704 of t he International Joint apprenticeship committee, Brotherhood of BRIDGE, Structural and Ornamental Ironworkers and in denying

plaintiffs' motion to amend t h e complaint to add

Steve King as a defendant?

II. Did the trial court err in g ranting summary judgment t o the owner of the land and building, Kenco

Group, Inc., on which the decedent was working when

he fell to his death?

III. Did the trial court e rr i n granting summary judgment t o Kir by Building Systems, Inc., the manufacturer of the structural steel building being

constructed by the d e ceased and others, on which

the deceased and others, were working at the of his

death?

IV. Did the tri al court err in granting summary judgment (motion to dismiss) to t h e defendant Donald

Louis Wa m p , d/b/a the Wamp Alliance, the named

architect on the project (Kenco Building)?

STANDARD OF REVIEW

The standards governing a review of a trial court's grant

of summary judgment are well-settled:
6

Tenn.R.Civ.P. 56.03 provides that summary judgment

i s only appropriate where: (1) there is no genuine issue

with regard to the material facts relevant to the claim

o r defense contained in the motion , B yrd v. Hall , 847

S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is

entitled to a judgment as a matter of law on the undisputed facts. Anderson v. Standard Register Co. , 857

S.W.2d 555, 559 (Tenn. 1993). The moving party has the

b u rden of proving that its motion satisfies the s e

requirements. Downen v. Allstate I ns. Co. , 811 S.W.2d

523, 524 (Tenn. 1991).

The standards governing the assessment of evidence

i n the su mmar y judgment context are also well established. Courts must view the evidence in the light most

favorable to the nonmoving party and must also draw all

reasonable inferences in the nonmoving party's favor.

Byrd , 847 S.W.2d at 210-11. Co urt s should grant a

summary judgment only when both the facts and the

conclusions to be drawn from the facts permit a reasonable person to reach only one conclusion. Id.

Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).

The standards of review for a trial court's action on a motion

to dismiss are likewise well-settled. When considering a Rule 12

motion to dismiss, we are required to accept the allegations of the

complaint as true. Greenhill v. Carpenter , 718 S .W.2d 268 (Tenn.

1986). Our scope of review is de novo with no pres ump tion of

correctness. Montgomery v. Mayor of the City of Covington , 778

S.W.2d 444 (Tenn. App. 1988).

The sole purpose of a Tenn. R. Civ. P. 12.02(6)

motion to dismiss is to test the legal sufficiency of the

complaint. Sanders v. Vinson , 558 S.W.2d 838, 840 (Tenn.

1977); Holloway v. Putnam County , 534 S.W.2d 292, 296

(Tenn. 1976). These motions are not favored, see Moore v.

Bell , 187 Tenn. 366, 369, 215 S.W.2d 787, 789 (1948), and

are now rarely granted in light of the liberal pleading
7

standards in the Tennessee Rules of Civil Procedure. See

Barish v. Metropolitan Gov't , 627 S.W.2d 953, 954 (Tenn.

Ct. App. 1981); 5A Charles A. Wright & Arthur R. Miller,

Federal Practice & Procedure §§ 1356 & 1357 (2d ed. 1990)

("Wright & Miller").

Tenn. R. Civ. P. 12.02(6) motions are not designed

to correct inartfully worded pleadings. Wright & Miller

§ 135 6, at 296. And so a complaint should not b e dis -

missed, no matter how poorly drafted, if it states a

cau s e of action. Paschall's, Inc. v. Dozier , 219 Tenn .

45, 50-51, 407 S.W.2d 150, 152 (1966); Collier v. Slayden

Bros. Ltd. Partne rshi p , 712 S.W.2d 106, 108 (Tenn. Ct.

App. 1985). Dismissal under Tenn. R. Civ. P. 12.02(6) is

warranted only when no set of facts will entitle the

plaintiff to relief, Pemberton v. American Distilled

Spiri t s Co ., 664 S.W.2d 690, 691 (Tenn. 1984), or whe n

the complaint is totally lacking in clarity and specificity. Smith v. Lincoln Brass Works, Inc ., 712 S.W.2d 470,

471 (Tenn. 1986).

While it is not our role to create claims where none

exist, Donaldson v. Donaldson , 557 S.W.2d 60, 62 (Tenn.

1977), we must always look to the substance of a pleading

rather than to its form. Usrey v. Lewis , 553 S.W.2d 612,

614 (Tenn. Ct. App. 1977). Thus, when a complaint is

tested by a Tenn. R. Civ. P. 12.02(6) motion to dismiss,

w e mu s t take all the well-pleaded, material factual

allegations as true, and we must construe the complaint

liberally in the plaintiff's favor. Lewis v. Allen , 698

S.W.2d 58, 59 (Te nn. 1985); Holloway v. Putnam County ,

534 S.W.2d at 296; Lilly v. Smith , 790 S.W.2d 539, 540

(Tenn. Ct. App. 1990).

Dobbs v. Guenther , 846 S.W.2d 270 (Tenn. App. 1992).

THE UNION DEFENDANTS

The plaintiffs have made a multiplicity of allegations against

the Union defendants. In sum and substance, however, the allegations can b e s ummarized as charging the Union defendants in-
8

dividually or collectively with failing to provide the decedent

with a safe place to work or negligent breach o f a colle ctive

bargaining agreement (contract) in failing to properly train or

otherwise prevent the decedent from undertaking duties for which he

was not qualified. Our inquiry is whether the Union defendants

were under any duty to provide a safe place or insure that a safe

place was provided for the deceased to work. After our examination

of the relevant authorities, we are of the opinion that the Union

defendants were under no such duty under the circumstances of this

case. As noted by the appellants, the Union defendants rely upon

Thompson v. Superior Fireplace Co. , 931 F.2d 372 (6th Circuit,

1991). Appellants insist that the case under consideration is

distinguishable from Thompson , however, the appellants have alleged

n o facts in the complaint which, in our opinion, would exclude this

case fro m t he operation of the rules enunciated in Thompson .

Furthe r , the appellants do not cite any authority to demonstrate

that Thompson is inapplicable in this case.

I n Thompson , the plaintiff was injured while working on a

hydraulic press brake at the Superior Fireplac e Comp any in Union

City, Tennessee. Among others, the defendant sued the Sheet Metal

Workers International Association, AFL-CIO, No. 4. The Union, in

Thompson , filed a mo tion f or summary judgment. The plaintiff

argued that th e U nion's summary judgment motion should not have

been granted because the Union had both a common law and contrac-
9

tual duty to provide the plaintiff with a safe working environment.

The District Court found that, under Tennessee Law, "the duty to

furnish an employee a reasonable safe place to work is the duty of

the employer, and that the duty is 'personal, continuous, and nondelegable.'" Citing Hamilton v. Bean , 745 F.2d 1034 (6th Cir.

1984) and Overstreet v. Norman , 314 S.W.2d 47 (Tenn. App. 1957).

Thompson , in due course made its way to the Sixth Circuit Court of

Appeals. The Sixth Circuit cited IBEW, AFL-CIO v. Hechler , 481

U.S. 851 (1987) and quoted therefrom as follows:

Under the common law ... it is the employer, not a

lab o r union that owes employees a duty to exercis e

reasonable care in providing a safe workplace.

* * * *

Another party, such as a labor union, of course, may

assume a responsibility towards employees by accepting a

duty of care through a contractual arrangement.

* * * *

Respondent's allegations of negligence assume

significance if — and only if — the Union, in fact, had

assumed the duty of care that the complaint alleges the

Union breached.

Hechler , 481 U.S. at 359-61.

Thompson further stated, citing various authorities omitted

here, that "[i]f an employee claims that a union owes him a more

far-reaching duty , h e must be able to point to language in a

collective bargaining agreement specifically indicating an intent
3

I t should be noted that as hereinbefore stated, we must take all the

well-pleaded, material factual al l e gations as true, and we must construe the

complaint liberally in the plaintiff's favor. We are not at liberty, however, to

accept as true conclusory allegations such as the following:

That at all times relati ve heret o, the duly (sic) [duty] of

safety instruction, direction and supervision on the aforementioned job

site was that of the Defen dant L ocal 704, or alternatively, the

Defe ndant Chattanooga Ironworkers JAC. That said Local 704 a n d

Chattanooga Ironworkers JAC breached said duties, which constituted

negligence and proximately caused the Plaintiff's decedent's fall and

subsequent death.

1 0

t o create obligations enforceable against the unio n by the

i ndividual employees. " (Emphasis ours.) In this case the plain -

tiffs neither allege d no r demonstrated that such a provision

existed in the collective bargaining agreement material to this

case. 3

We concur with the action of the trial court in granting the

summary judgment in favor of the Union defendants. Since the same

disposition would have resulted had the plaintiffs been allowed to

amend their complaint to name Steve King as a defendant, we find no

error in the court's action in denying the amendment.

KENCO GROUP, INC.

A s hereinbefore noted, Kenco Group, Inc., is the owner of the

parcel of land upo n whic h the warehouse building was being

constructed. Kenco contracted with Morgan where by Mor gan was to

construct the building. The basic issue here is whether Kenco can

b e held liable for injuries to the employees of Morgan, the
1 1

contractor. The general rule is stated in Johnson v. Empe, Inc.,

et al. , 837 S.W.2d 62 (Tenn. App. 1992):

A n owner of premises who employs a contractor to

perform work on the property, but who remains in control

o f the premises where the work is being done, owes to the

employees of the contractor a duty to exercise ordinary

care in the management of the premises in order to avoid

exposing the employees to an unreasonable risk of harm.

If, however, the contractor had complete control of

the premises where the acc iden t occurred and the owner

had retained no control of that part of the premises

except to the extent of determining if the work was being

performed according to the contract, then the owner owes

no duty of care to the employees of the contractor. 

The rule may be more concisely stated. The law

places the duty upon the person in control of premises to

exercise reasonable and ordinary care, under the circumstances, not to cause injury to one lawful ly upon the

premises. See Ruth v. Ruth , 372 S.W.2d 285, (Tenn. 1963).

Johnson v. Empe , 837 S.W.2d 62, 65.

I n this case, the rec ord clearly reflects that Morgan, the

contractor was in control of the premises. Kenco did not remain in

control of the premises where the work is being done in a manner

sufficient to impose liability on the theory of control.

Johnson v. Empe , supra, does not ad dress the issue of

circumstances involving hazardous or dangerous activities or

whether, under circumstances where hazardous or dangerous activities are being conducted, the duty of the landowner was delegable.

I n Coo per v. Metropolitan Government, etc. , 628 S.W.2d 30 (Tenn.
1 2

App. 1981), Judg e Cant rell in an excellent and scholarly opinion

clearly enunciated the rule applicable here. We take the liberty

of quoting at some length from the opinion:

Assu min g that work involved in this case was

inherently dangerous and conceding that an employer may

not contract away his liability to the general public for

harm caused in the performanc e of that activity, a

question remains as to whether that liability extends to

employees of the contractor . (Emphasis in original.)

Some courts have held an employer liable to the employee

of a contractor for injuries arising in the performance

of inherently dangerous work. Schultz & Lindsey Constr.

Co. v . Erickson , 352 F.2d 425 (8th Cir. 1965); Chicag o

Economic Fuel Gas Co. v. Myers , 168 Ill. 139, 48 N.E. 66

(1897); Mallory v. Louisiana Pure Ice & Supply Co. , 320

Mo. 95, 6 S.W.2d 617 (1928). Other courts have made a

distinction between the public at large and the employees

o f the contractor. In those states the employer's

liabi lity is only to members of the general public an d

does not extend to employees of the contractor. Corban v.

Skelly Oil Co. , 256 F.2d 775 (5th Cir. 1958); Hurst v.

Gulf Oil Corp. , 251 F.2d 836 (5th Cir.), cert denied, 358

U.S. 827, 79 S.Ct. 44, 3 L.Ed.2d 66 (1958); Welker v.

Kennecott Copper Co. , 1 Ariz.App. 395, 403 P.2d 330

(1965); Epperly v. Seattle , 65 Wash.2d 777, 399 P.2d 591

(1965).

This question apparently has not been decided

directly in Tennessee although authority for the latter

posi tion can b e found in the case of Jones v. City of

Dyersburg , 59 Tenn. App. 354, 440 S.W.2d 809 (1967). In

t hat case an employee of a subcontractor was inj ure d

while working on power lines owned by the City of

Dyersburg. In that case the allegations against the City

were that it had not provided the workman a safe place in

which to work and not that it had a duty to the workman

o f the subcontractor based on the inherently dangerou s

nature of the work. However, the Court of Appeals in

reversing a judgment for the workman against the City

said:

W e hold that t he C ity of Dyersburg was not

obligated under its contract nor under its

nondelegable duty as a suppli er o f electricity to
1 3

supervise the performance of the contract by Safeco

and its employees so as to prevent the employees

being injured by t heir own negligence. It would

have been impra c t ical and would have in effect

negatived the very contract which it awarded

Brayton for the City of Dyersburg to have been

required to furn ish men to supervise all of the

phases of the electrical work being don e by the

subcontractor Safeco so as to prevent Safeco's

employees from injuring themselves.

59 Tenn. App. at 392-93, 440 S.W.2d at 826.

W e think this is authority for the rule of nonliability of an employer to employees of a contractor

even though the contract involves work that is inherently

o r intrinsically dangerous. We also think this is the

preferable rule. Otherwise, an employer having work to be

performed of an inherently dangerous nature and wishing

t o employ a contractor skilled in the performance of such

work in order to minimize the danger to the public at

large would nevertheless be liable to t he employees of

the contractor for the contractor's negligence. A

hom eowner would be liable to the employees of a n

electrical contractor for failure to inspect the

equipment of the contractor to make sure that it was

safe.

Cooper v. Metropolitan Government, etc. , 628 S.W.2d 30, 32-33.

Tested under the authorities cited above, we are of th e

opinion that the action of the trial court in granting summary to

Kenco was appropriate.

KIRBY BUILDING SYSTEMS, INC.

Our next inquiry is whether the trial court erred in granting

summary ju dgment to Kirby. Kirby was the manufacturer and/or

seller of the building. The plaintiffs also state a multiplicity
1 4

o f allegations against Kirby. In their brief, however, the

appellants have condensed their allegations. The plaintiffs charge

that Kirby:

1 . Negligently designed and manufactured the metal

building which plaintiffs' decedent was helping to

erect at the time of his fall.

2 . Failed to instruct or adequately instruct the

general contractor, architect, owner, Davis, and/or

ironworkers, concerning the erection of the said

steel building.

3 . Failed to warn the general contractor, architect,

owner, Davis, and/or ironworkers, concerning the

dangers and safety requirements when constructing

and erecting their steel and metal buildings.

The appellants rely upon the affidavit of A. O. White, Jr.,

P.E., to support their allegations against Kirby. A. O. White is

a registered professional engineer in the State of Tennessee. We

will first examine the contents of the affidavit. Mr. White

deposes that he was employed by the Attorney for the plaintiffs and

thereafter supplied with documents related to the case and "[a]s a

result of review and study of those documents, I have personal

knowledge of the matters stated herein." It is difficult to

understand how Mr. White can have personal knowledge concerning

facts provided to him in "documents relating to this case." Thus,

w e have some question as to the efficacy of the affidavit under the

teachings of Fowler v. Happy Goodwin Family , 575 S.W.2d 496, 498
4

The deposition of Mr. Tanner has been submitted to this court in condensed

form, i.e. four pages of the deposition have been reduced to fit on one letter sized

page, a practice which we find to be undesirable. See Rule 30, Tennessee Rules of

Appellate Procedure.

1 5

(Tenn. 1978). Nevertheless we have studied Mr. White's affidavit

in detail.

Paragraphs 2 and 4 of Mr. White' s affi davit state the

following:

2 . Larry Jason Dempsey, while working as an

employee of Burroughs Metal Builders, Inc., on the roof

o f a building being constructed by Kenco/Bonny Oaks, II,

a t 6301 Enterprise Park Drive in Chattanooga, Tennessee,

fell to his death about mid-day on Friday, March 17,

1995. As the decedent attempted to stand up on the roof,

h e put his hand on an aluminum trim strip which collapsed

under his weight. He fell approximately thirty-five feet

(35') landing on a concrete floor slab below.

4 . The supporting steel roof structure and standing seam steel roof deck from which the de ced ent fell

were des ign ed and manufactured ... by Kirby Steel

Buildings, Inc. Drawings prepared by Kirby did not show

o r describe a safe method for installing aluminum trim

strips (also called Yeager strips) in o rder to enhance

aesthetic appearance of the finished insulated roof deck.

I t was a Yeager strip which collapsed beneath the

decedent. ... .

There is evidence in the record to demonstrate, by inference

a t least, that the cau se of the decedent's fall was the Yeager

strip. The only witness to the fall, Mr. Terry Tanner testified by

deposition that he did not know why the decedent slipped. 4

 He was

asked the following questions and gave the following answers:
1 6

Q . Just tell us what happened insofar as his [the

decedent] holding onto the skylight trim or placing

it and the accident.

A . H e placed the skylight trim out on the mark and I

started to screw the skylight rim down and I looked

u p and saw Brian had started to put the pipe in the

insulation to carry it over to the edge of the roof

and I told Jason that I didn't need him, that I

could handle that, that he co uld go over and help

Brian get the insulation ready to roll out.

Q . What happened then?

A . A t that time he started to get up, he was on hi s

hands and knees and next thing I knew he was in the

hole.

Q . When you say he was on his hands and knees, you

talking [sic] about kneeling on the platform?

A . Right.

Q . Were you also in a kneeling or crouched position?

A . No, I was in a standing position with one foot on

the bar joist — one foot on the skylight trim and

one foot on the platform.

Q . Did you see him fall?

A . Yes, I saw him af ter he had slipped, I didn't

actually see him slip or fall.

Q . Do you know why he slipped?

A . No.

Q . Had you fin ished putting the skylight trim down

when he slipped?

A . I don't recall if I had placed the screw in or not,

I knew I was prepared to a nd I think maybe I had

started to put the screw down at the point that he

slipped and I reached for him.

Q . I n looking at Exhi bit No. 1, can you identify

Exhibit 1 as being the area where the accident

occurred?
1 7

A . It could be, yes.

Q . Let me hand you another p hotogr aph and ask you if

you can identify this photograph?

A . Yes.

Q . Can you tell me what that photograph shows?

A . That shows the ro of and the platform and the trim

strip hanging down from the building.

* * * *

Q . When you talk about the trim strip hanging down in

Exhibit No. 5, what are you referri ng to in that

photograph?

A . The trim strip hanging dow n f rom the roof of the

building.

Q . Is that the Yeager trim strip?

A . Yes.

* * * *

Q . What happened to the Yeager trim strip after the

fall?

A . The Yeager trim strip broke lose [sic] from the end

of the building where it had been fastened.

Q . D o you know if he hit the Yeager trim strip when he

fell?

A . Yes, he did.

* * * *

There is nothing in the record to suggest that the Yeager

strip was negligently designed or manufactured or that the product

was defective or unreasonably dangerous. Mr. White ventured no

opinion on these points.
1 8

Our Supreme Court has addressed the duty to warn, or lack

thereof, in products liability c ase s in Goode v. Tamko Asphault

Products, Inc. , 783 S.W.2d 184 (Tenn. 1989). In Goode , the

plaintiff claimed that he contracted a skin pigmentation condition,

diagnosed as vitiligo, as a result of using asphalt roof shingles

and felt manufactured by the defendants. There were no warnings.

The Supreme Court stated:

Plaintiff's theory of recovery in this case is that

defendants were guilty of a negligent breach of duty to

warn of the non-apparent danger associated with the use

o f their roofing products. A failure to discharge a duty

t o warn, whether negligent or innocent, is expre ssl y

included in the definition of a products liability action

i n T.C.A. § 29-28-102(6). T.C.A. § 29-28-105(a) provides

that to impose liability on a manufacturer [or seller] it

must be shown that the product was in a defective

condition, or an unreasonably dangerous condition, at the

time it left the manufacturer's [or seller's] control. In

this case there is no contention that the products were

i n a defective condition. Thus, the issue is whe the r

defendant's roofing products were in an unreasonably

dangerous condition at the time the products left the

control of each manufacturer [or seller]. It follows that

if the products were unreasonably dangerous, defendants

had a duty to put an appropriate warning on the labels,

but if the products were not unreasonably dangerous, the

law imposes no duty to warn.

The definition of "unreasonably dangerous" that is

applicable to the facts in this case is the foll owi n g

portion of T.C.A. § 29-28-102(8):

(8) "Unreasonably dangerous" means that a product

i s dangerous to a n extent beyond that which would

b e contemplated by the ordinary consumer who

purchases it, with the ordinary knowledge common to

the community as to its characteristics, ... .

Goode , 783 S.W.2d 184, 187.
5

Wamp ' s motion to dismiss was treated by the court as a motion for sum mar y

judgment since matters outside the pleadings were considered by the court.

1 9

W e note also that T.C.A. § 29-28-102(6) not only deals with an

action for failure to warn but also encompasses a failure to

instruct. 

W e are of the opinion that the observations made in Goode are

applica ble to the case at hand. We, therefore, find that t h e

affidavit of Mr. White, together with the record considered as a

whole, are insufficient to overcome a properly supported motion for

a summary judgment.

THE WAMP ALLIANCE 5

The appellants claim that the defendant, Wamp, was the

architect for the Kenco Warehouse project. Against Wamp, they also

list a multi plicity of allegations wherein they assert that Wamp

was negligent. Specifically they charge Wamp with:

1 . Failure to develop, publish and disseminate structural design standards to the contractors and/or

employees.

2 . Failure to properly warn the plaintiffs' decedent

of the dangers associated with working in high and

dangerous loc atio ns and failing to prepare him to

protect himself against such dangers.
2 0

3 . Failure to make provide [sic] adequate safety

personnel on site for erectio n of the structural

steel.

4 . Failure to provide proper safety specifications for

the use of safety gear and equipment on the subject

project.

5 . Preparing drawings and specifications requiring and

using dangerous methods of construction in connection with the subject project, without providing

adequate warnings of said dangers to Harris, Kenco,

Ironworkers, Davis, Burroughs and Morgan.

6 . Failure to make proper safety inspecti o ns of the

subject property.

7 . Failure to properly supervise the construction site

and process to pro tect the safety of the

plaintiffs' decedent.

8 . F a ilure to properly consult with and advise th e

defendant Kenco, defendant Harris, defendant Davis,

defendant Ironworkers, the subcontractor,

Burroughs, or the general contractor, Morgan, concerning construction practices, safety and warnings

to workers.

9 . Failure to hire a project or stru ctural engineer,

or hiring an unqualified one.

10. Negligently entrusting said metal building to

contract ors , engineers, and architects who were not

adequately knowledgeable, and skilled in construction

methods used, or failing to hire, designate or

require proper contractors, engineers or architects

to construct said warehouse building.

I t is undisputed that Wamp was hired solely for the purpose of

providing drawings of the project in order to get building permits

issued. Wamp was not a party to any contract which imposed upon

him any other duties. The plaintiffs cite no authority for their

claims advanced against Wamp nor have they produced any expert
2 1

testimony that the actions of Wamp fell below the standards of care

for architects.

 They further claim that Wamp committed the alleged negligent acts

a s the agent of either Kenco , Mo rgan or Kirby. The undisputed

evidence is that Wamp was employed solely for the purpose of

preparing drawings of the project in order to get building permits

issued. Wamp was not a party to contracts between Kenco and Morgan

even though he was listed in the contract documents as the

architect on the project.

CONCLUSION

W e find no merit in any of the issues ad v a nced by the

appellants and urged upon this court as groun ds for reversal.

Accordingly, we affirm the judgment of the trial court. Costs are

assessed to the appellants and this case is remanded to the trial

court.

 ________________________________

 Don T. McMurray, Judge

CONCUR:

_______________________________

Herschel P. Franks, Judge
2 2

_______________________________

Charles D. Susano, Jr., Judge
 IN THE COURT OF APPEALS

AT KNOXVILLE

LARRY DEMPSEY and wife, LISA ) HAMILTON CIRCUIT

DEMPSEY, Co-Administrators of ) C. A. NO. 03A01-9709-CV-00436

the Estate of Larry Jason ) 

Dempsey, )

 )

 Plaintiffs-Appellants )

 )

 )

 )

 )

 )

vs. ) HON. SAMUEL H. PAYNE

 ) JUDGE

 )

 )

 )

 )

 )

INTERNATIONAL ASSOCIATION OF ) AFFIRMED AND REMANDED

BRIDGE, STRUCTURAL AND ORNAMEN- )

TAL IRONWORKERS, LARRY G. DAVIS,)

individually and as agent and )

employee of the International )

Association of BRIDGE, )

Structural and Ornamental )

Ironworkers, KIRBY BUILDING )

SYSTEMS, INC., FREELAND HARRIS, )

d/b/a Freeland Harris Consulting)

Engineer and DONALD LOUIS WAMP, )

d/b/a The Wamp Alliance, )

 )

 Defendants-Appellees )

JUDGMENT

This appeal c ame on to be heard upon the record from the

Circuit Court of Hamilton County, briefs and argument of counsel.

Upon consideration thereof, this Court is of the opinion that there

was no reversible error in the trial court.
2

The judgment of the trial court is affirmed in all respects

and this case is remanded to the trial court. Costs are assessed

to the appellants.

 PER CURIAM