Maraman v. Cooper Steel Fabricators

• Decision Date: 06 November 2001
• Docket Number: No. COA00-396.,COA00-396.
• Citation: 146 NC App. 613,555 S.E.2d 309
• Court: North Carolina Court of Appeals
• Parties: Kenneth L. MARAMAN Sr. and Mildred MARAMAN, administrators the Estate of Kenneth L. Maraman, Jr., Plaintiffs, v. COOPER STEEL FABRICATORS and James N. Gray Company, Defendants.

555 S.E.2d 309

146 NC App. 613

Kenneth L. MARAMAN Sr. and Mildred MARAMAN, administrators the Estate of Kenneth L. Maraman, Jr., Plaintiffs, v. COOPER STEEL FABRICATORS and James N. Gray Company, Defendants.

No. COA00-396.

Court of Appeals of North Carolina.

November 6, 2001.

Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin Smith, Charlotte, for plaintiff-appellants.

Jones, Hewson & Woolard, by Lawrence J. Goldman, Charlotte, for defendant-appellee Cooper Steel Fabricators.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Hatcher Kincheloe and Neil P. Andrews, Charlotte, for defendant-appellee James N. Gray Company.

JOHN, Judge.

Plaintiffs Kenneth L. Maraman, Sr. (Kenneth, Sr.), and Mildred Maraman appeal the trial court's orders directing verdicts in favor of defendants Cooper Steel Fabricators (Cooper Steel) and James N. Gray Company (Gray). Plaintiffs are awarded a new trial as to Cooper Steel, but no error is found as to Gray.

Plaintiffs filed the instant action 12 December 1997 in Mecklenburg County Superior Court. Each defendant answered plaintiffs' complaint, cross claimed against the other for contribution or indemnity, and filed subsequent motions for summary judgment. The latter were denied by the trial court.

Trial commenced 25 October 1999. Plaintiffs' evidence tended to show the following: Gray served as general contractor for construction of a warehouse in Huntersville, North Carolina, and entered into a contract with Cooper Steel to perform steel fabrication and erection work at the job site. Kenneth L. Maraman, Jr. (decedent), and his father, Kenneth, Sr., were employed by Cooper Steel as steel erectors. Decedent was twenty-four years old and had worked in steel erection for approximately seven years.

On 15 December 1995, decedent and his father were working at the Huntersville warehouse job site. The building was being constructed by creation of a concrete pad and establishment of a series of columns rising upwards from ground level. Steel girders connected column to column and metal joists were assembled which connected girders to girders "cross ways," filling the space between them.

Equipment on the job included a man-lift, consisting of a bucket on a hydraulic lift with a telescoping pole. Steel erectors (workers) such as decedent utilized nylon safety belts equipped with lanyards that hooked to "D-rings" on the belts and to "tie-offs" on the bucket. When required to stand on steel components of the structure, workers would tie onto a safety line or "rat line," described as

a cable that generally runs from column to column. It is tied off on the [girder] but basically across the [girder], it should be from one end of the [girder] to the other.

Hooking the lanyard onto the safety line would enable workers to move from column to column while being tied off, and having the lanyard thus tied off to a safety line would prevent workers from falling more than six feet. Kenneth, Sr., testified that on 15 December 1995 at about 1:00 p.m., he and a co-worker were ordered by Robert Marlowe (Marlowe), "senior man" for Cooper Steel at the site, to drop the safety lines from an area of the project where erection was complete so that the lines could be used in a forward section. Kenneth, Sr., recollected that some of the lines "got moved right up under the crane," but "were never used," and that he dropped safety lines "all the way up to two bays before I got to the connectors, which it didn't have no safety lines at that point any way."

Approximately four hours later that day, decedent was working as a "connector" at the open end of the building where erection was ongoing. According to Cooper Steel employee James Fults (Fults), a "connector's" job was to "catch" iron joists raised by the crane, "set [them] in place, and weld [them] down or bolt [them] up." Decedent went up in the man-lift some thirty-one and one-half feet above the ground to help place large joists into position. Fults described the joists as "huge," "the biggest joists I ever seen[,] 85 feet long...."

Kenneth, Sr., testified that upon exiting the bucket onto a girder, decedent looked for a safety line upon which to attach his lanyard, but "there was no line there." Kenneth, Sr., further related that the ground crew raising the joist by means of a crane experienced a problem:

So they flew it back down, and then rerigged it. And then they brought it back up. And when it started back up, it done the same thing. And then it I'm not mistaken, I heard somebody holler, bring it back down, and then somebody else hollered, no, let it fly. Just take it on up.

While standing on the girder, decedent reached out to position the joist. When he did so, the joist bounced and struck decedent in the head, knocking him to the ground. He was transported to the hospital by ambulance and pronounced dead a few hours later.

At all pertinent times during the incident, Marlowe was in charge at the site and standing on the ground in view of crew members, including decedent and Kenneth, Sr. Although no Gray representative was present on the date of decedent's fall, Gray maintained a supervisory trailer at the construction site and a Gray representative visited the site on a regular basis.

Kenneth, Sr., and Fults testified that Marlowe subsequently organized a group to return to the job site that night where, as Fults described it,

we put up a rat line, and they got ... Marlowe and Tadpole got in the crane and done something, and I don't know exactly what it was they done. But I had asked them, and they told me that it was something to the effect of messing with the memory of the crane, because to the effect that OSHA can pull the memory of the crane, and tell every move that crane had made.

Fults related that the rat line was installed at the location of decedent's fall using the headlights of trucks for illumination, and that "there was no rat line where Kenny was [working] at the time of the accident."

John Francis (Francis), a North Carolina Department of Labor, Occupational Safety and Health Division investigator, conducted an on-site investigation the following day. Francis described the "hazard level" of steel erection as "rather high" and related the minimum standard fall protection in steel erection projects. He indicated that for work more than thirty feet "outside a structure," such as that in issue, the standard required one hundred per cent tie off to "an eye somewhere attached that would support [a] five thousand pound shock load."

Francis stated that information he received at the job site indicated decedent had unhooked his lanyard from a safety line so as to move around a girder and then snap it back onto the safety line. Decedent reportedly was struck by the joist "while he was unfastened from his rat line," and fell. Francis testified that

[b]ased on the information I got during the inspection, I received from the folks involved, there was no doubt in my mind there was a rat line in place

at the time of decedent's fall.

Upon completing his investigation, Francis cited Cooper Steel for "serious" violation of OSHA standards as follows:

continuous fall protection was not in use at the time of the incident, even though [Cooper Steel's] safety rules required it, and there was a foreman on-site to enforce it[,]... and not controlling a load with a tag line.

Questioned about evidence that a safety line may not have been installed at the location where decedent was working at the time of his fall, Francis replied:

if ... we have the decedent standing on a length of any description without the appropriate anchor point, then we're going to be confronted with the same thing that we were even with the rat line there.... [I] would [not] have changed [my] citation even if there had been no rat line at all....

Francis related that certain violations classified as "wilful serious" and "wilful" went "even beyond" the "serious" violations with which Cooper Steel was charged. However, he characterized Cooper Steel's violations as "high/high," meaning that "as a result of the standard's violation particularly as it's looked at through that industry," there existed a high probability that an accident would occur and that, should it occur, "there [wa]s going to be a high severity, permanent disability, or death." Each "high/high" violation customarily carried a base penalty of $7,000, but Francis reduced each fine to $3500.00 in light of Cooper Steel's clean history and its large employee compliment of approximately one hundred employees. Francis did not cite Gray for any OSHA violations, indicating "[he] was given to understand that Gray was the general contractor."

At the close of plaintiffs' evidence, each defendant moved for directed verdict pursuant to N.C.G.S. § 1A-1, Rule 50 (1999). The trial court allowed both motions, and plaintiffs appeal.

By their sole assignment of error, plaintiffs contend the trial court committed reversible error by "granting a direct[ed] verdict to the Defendants Cooper Steel and Gray Construction." It is well established that

[a] directed verdict should be granted only if the trial judge could properly conclude that no reasonable juror could find for [the nonmoving party]. All conflicts in the evidence must be resolved in favor of [the nonmoving party,] [ ] the evidence must be viewed in a light most favorable to [the nonmoving party,]

Estate of Smith v. Underwood, 127 N.C.App. 1, 13, 487 S.E.2d 807, 815 (1997), and the nonmoving party "must be given the benefit of all reasonable inferences that may be drawn from that evidence," Abels v. Renfro Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993) (citations omitted). To survive a directed verdict motion, the non-moving party must have presented evidence adequate to sustain a jury verdict in its favor or must have offered sufficient evidence "to present a question for the jury." Best v. Duke University, 337 N.C. 742, 749, 448 S.E.2d 506, 510...