Bosley v. Shepherd

• Decision Date: 02 November 2001
• Docket Number: Record No. 002735.
• Citation: 262 Va. 641,554 S.E.2d 77
• Court: Virginia Supreme Court
• Parties: Robert BOSLEY, et al. v. Michael A. SHEPHERD, et al.

554 S.E.2d 77

262 Va. 641

Robert BOSLEY, et al. v. Michael A. SHEPHERD, et al.

Record No. 002735.

Supreme Court of Virginia.

November 2, 2001.

Fay F. Spencer, Norfolk (Robey, Spence & Drash, on brief), for appellants.

Blair E. Smircina (Richard F. Aufenger, Norfolk; Kalfus & Nachman, on brief), for appellee Michael A. Shepherd.

No brief or argument on behalf of appellee Atlantic Welding & Fabricating, Inc.

Present: All the Justices.

KEENAN, Justices.

In this appeal, we consider issues arising from the trial of a personal injury action brought by a worker against the general contractor of a construction project, one of the general contractor's employees, and a steel erection subcontractor.

Michael A. Shepherd was injured in November 1996 while using a boom crane to deposit gypsum sheathing (sheetrock) into a second-floor opening of a building under construction at the Dam Neck Naval Installation in Virginia Beach. The United States Navy, owner of the construction project, entered into a contract with W.B. Meredith, II, Inc. (Meredith), which provided for Meredith's services as general contractor of the project. Meredith contracted with various subcontractors to provide certain construction services, including Virginia-Carolina Steel, Inc., to perform the steel fabrication and erection portion of the general contract. Virginia-Carolina Steel, in turn, contracted with Atlantic Welding & Fabricating, Inc. (Atlantic Welding) to provide the steel erection work for the project.

Additionally, Meredith contracted with Wenger Tile and Plastering Co., Inc. (Wenger) for the drywall installation portion of the general contract. Wenger contracted with Gypsum Management & Supply, trading as Tidewater Interior Products (TIP), a drywall company and supplier of sheetrock, to supply sheetrock for the construction project. TIP employed Shepherd to transport the sheetrock to the construction site and to operate TIP's boom crane, which was used to place the sheetrock at specific locations at the site.

Upon arrival at the construction site, Shepherd's co-worker, Christopher Scott Hewitt, contacted Wenger's project superintendent, Jonathan McGowan, Jr., and Wenger's foreman, Darrell Ashley, to receive instructions concerning "offloading" the sheetrock. Hewitt, McGowan, and Ashley conferred with Meredith's construction superintendent and co-defendant, Robert J. Bosley, to determine the proper locations at which to place the sheetrock.

Shepherd used a TIP truck to deliver the loads of sheetrock to the project site. At the site, he used a hydraulic boom crane, mounted on top of the truck, to lift and place several bundles of sheetrock, called "hacks," onto the first and second floors of the open structure. At the direction of McGowan and Ashley, Shepherd later moved his boom crane to the southeast corner of the structure to place additional hacks in a different location on the second floor.

Shepherd's ability to maneuver the crane's boom arm inside the second-floor opening was restricted by a horizontal steel girt. The steel girt was a hollow square beam that was placed on brackets several feet above the floor across the top of the opening of the second deck of the structure. The brackets were attached to the vertical steel columns of the structure. The girt was about 29 feet long and weighed about 1700 pounds. The distance between the girt and the ground was about 20 feet.

In order to move the sheetrock hacks to the designated second-floor location, it was necessary for Shepherd to insert and retract the boom arm in between the girt and the second floor. When performing this maneuver, Shepherd had a clearance space of between three and four inches from the top of the boom arm to the bottom of the steel girt.

On Shepherd's first attempt to maneuver the boom arm into this opening, he successfully unloaded two hacks of sheetrock. On Shepherd's second attempt, he deposited two more hacks. As the boom arm retracted, it made contact with the steel girt.

Hewitt observed that the steel girt was "teetering" on top of the boom arm between six and seven inches off the girt's brackets. Hewitt shouted to Shepherd to alert him to the dangerous situation. As Shepherd attempted to jump out of the crane operator's chair, the girt slid down the crane's arm and struck him, causing him serious injuries.

Shepherd filed a motion for judgment in the trial court against Meredith, Bosley, and Atlantic Welding, alleging that he was seriously injured as a result of the defendants' negligence. Shepherd alleged, among other things, that the defendants were negligent in failing to secure the girt adequately to its brackets, and in failing to warn all others on the construction site that the girt was not properly secured.

At trial, Hewitt and McGowan testified that Bosley was told that some sheetrock hacks would be placed on the second floor at the southeast corner of the structure. Hewitt stated that Bosley gave Hewitt permission to remove the safety cable at the southeast opening on the second floor to prevent the cable from obstructing the path of the boom arm.

Shepherd also presented evidence that the steel girt in question was not "tack welded" or otherwise secured to its brackets. A tack weld is a temporary weld used by steel erection workers to hold a girt in place until it is properly aligned with other girts throughout the structure. Once all the girts are properly aligned, they are secured with permanent welds.

Manuel Seoane, a safety investigator for the Navy, testified that his inspection of the girt struck by the boom arm, and the bracket on which the girt was placed, revealed no evidence of any welding. Seoane concluded that the girt fell because it had not been "tacked into position and secured." Seoane also stated that Peter G. Godfrey, a foreman for Atlantic Welding, admitted that the girt that struck Shepherd had not been tack welded. However, Godfrey testified that when he made this statement, he was referring to permanent welding, not tack welding.

Shepherd presented the expert testimony of Frank Burg, an occupational safety and health consultant. The defendants filed a motion in limine, requesting that Burg be prohibited from testifying that the defendants violated the Occupational Safety and Health Act of 1970 (OSHA). 29 U.S.C. §§ 651 through 700 (1994). The defendants argued, among other things, that "Burg has not identified any specific code, regulation or standard of any type that addresses the erection and placement of steel girts of the type that injured [Shepherd]." The trial court denied the defendants' motion.

Burg testified that the defendants violated 29 U.S.C. § 654, OSHA's "general duty" clause, which he stated requires an employer to keep the workplace free from recognized hazards that could cause death or serious physical harm. Burg also stated that he considers an OSHA violation to have occurred whenever someone is seriously injured on a job, unless the injury was caused by employee misconduct or an "act of God."

Burg concluded that Shepherd's accident could have been prevented if the defendants either had secured the girt or had blocked access to the area beneath the girt. Burg testified that Meredith, as the general contractor, had the responsibility under OSHA to ensure that the staging and coordination of work on the job site was performed in accordance with applicable safety standards. Burg stated that OSHA required the defendants to analyze safety hazards and to implement and follow a work safety program. Burg opined that if there had been an adequate safety program in place and if sufficient inspections had been made, the accident would not have occurred.

During the defendants' case, Bosley testified that he did not instruct Hewitt, McGowan, or Ashley to deposit sheetrock at the southeast corner of the second floor, and that he did not authorize the removal of any safety cables at that location. Bosley further stated that he thought that the girt in question was secured properly by a weld.

The defendants also presented evidence that the girt was tack welded to its brackets. Frankie L. Brock, an ironworker for Atlantic Welding, testified that he personally tack welded the steel girt, and that he was "positive" that he secured the girt in this manner at both ends.

In addition, the defendants presented testimony from experts in the steel erection and welding industries. These experts included Richard Leland, a registered civil engineer, Brock, and Edwin W. Shelton, owner and president of Virginia Steel. These experts testified that photographs taken of the girt immediately after the accident revealed burn marks and other indications of tack welding.

The jury returned a verdict for Shepherd against Bosley and Meredith and awarded damages in the amount of $325,000. The jury also returned a verdict in favor of Atlantic Welding. The trial court denied the motion of Bosley and Meredith to set aside the verdict and entered final judgment in accordance with the verdict. Bosley and Meredith appealed from this judgment.

On appeal, Bosley and Meredith (collectively, the defendants) argue that Shepherd was the statutory employee of Meredith under the Virginia Workers' Compensation Act (the Act), Code §§ 65.2-100 through 1310 and, thus, was barred from bringing a common law negligence action against the defendants. They contend that Shepherd was engaged in an act of construction, rather than of delivery of materials, at the time he was injured because he was required to use "specialized" equipment at different locations on the job site to deposit the sheetrock. The defendants assert that Shepherd's use of a boom crane distinguishes the present case from our decisions that have held that the mere delivery of construction materials to a job site does not constitute part of a general contractor's trade, business, or occupation. We disagree with the defendants' arguments. The exclusivity provision of the...