Powell v. S & G Prestress Co.

• Decision Date: 19 April 1994
• Docket Number: No. 935SC572,935SC572
• Court: North Carolina Court of Appeals
• Parties: Dora POWELL, As Administratrix of the Estate of Timothy Gwan Powell (Deceased) v. S & G PRESTRESS COMPANY, The Arundel Company, Michael Means and Richard Schouten.

Page 143

442 S.E.2d 143

114 N.C.App. 319

Dora POWELL, As Administratrix of the Estate of Timothy Gwan

Powell (Deceased) v. S & G PRESTRESS COMPANY, The Arundel Company, Michael Means and Richard Schouten.

No. 935SC572.

Court of Appeals of North Carolina.

April 19, 1994.

William H. Dowdy, Wilmington, for plaintiff-appellant.

Johnson & Lambeth, by Beth M. Bryant and Robert White Johnson, Wilmington, for defendants-appellees.

WELLS, Judge.

Plaintiff contends that the trial court erred by granting defendants' motion for summary judgment because there exist genuine issues of material fact regarding the liability of defendants for their alleged intentional misconduct based on Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). We disagree.

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.Gen.Stat. § 1A-1, Rule 56.

The forecast of evidence reveals the following. Timothy Powell, the decedent, age 22, was a temporary employee of Prestress which hired him from a temporary employment agency. Prestress regularly employed approximately 15 temporary employees. Temporary employees were provided with hardhats and safety glasses but were not given any safety training. Prestress did not provide temporary employees with its safety manual.

Powell began work at Prestress on 22 November 1989 and worked 9.24 hours on that day. He next returned to Prestress on 29 November 1989, the day of the accident. On the day he was killed, Powell was one member of an eight-person crew working on one of two forming beds used to construct concrete elements. His job was to attach reinforcing bars to the forming beds before the concrete was poured. The two forming beds run parallel to one another, and an overhead crane straddles the forming beds. The crane has four rubber wheels approximately 16 inches wide and 45 inches high. Two wheels move on the outside of each forming bed. The crane travels only forward and backward along the length of the forming beds. The wheels are approximately 3 to 5 feet from the forming beds, and it is necessary for employees working on the forming beds to work, often with their backs to the wheels, between the wheels and the forming bed as the crane moves past them. The crane has a maximum speed of 4 miles per hour. On each side of the crane were motion alarms which sounded loudly any time the crane was in gear whether or not the crane was moving. The wheels of the crane were not equipped with tire guards although guards were available, and Prestress had recently purchased a straddle crane which was equipped with tire guards. No law required such tire guards. Prestress' policy was that the crane was not to be moved without a signal man directing the forward and backward movement of the crane. Prestress did not train any of its employees in signaling nor were there any uniform signals. None of its employees were designated specifically as signal men. Rather, any employee could serve as the signal man on any particular occasion.

On the date of Powell's death, there was, in addition to the crew with which he was working, another crew working on the other forming bed. This crew was further ahead in preparing its forming bed than was Powell's crew and required the use of the crane to move tarps on top of its forming bed. Anthony Brewer, who had worked at Prestress for over 5 years, operated the crane which carried the tarps. Brewer had a driver's license but is legally blind in his right eye. The tarps measured 42 feet by 15 feet. The crane moved backward, past Powell, to pick up a tarp and began moving forward at full speed toward him. The crane carried the tarp while the unsecured end was held by another worker. Brewer could not see Powell because the tarp obstructed his vision. Powell's left foot was caught under the wheel, and before the crane could be stopped, it traveled the length of his body, crushing and killing him.

The accident report of the North Carolina Department of Labor reveals the following about the factors which contributed to the accident. The motion alarm was sounding at the time of Powell's death but "[t]he size of the crane and the location of the alarm devices [were] such that the alarm sound [did] not produce a warning of imminency of danger. The sound seem[ed] remote from the point of danger." Prestress did not instruct employees to move away from the crane when it was moving past them. Instead, employees were expected to remain working between the wheels and the forming beds. Although there were no specific requirements for tire guards on straddle cranes, "[t]he guards would prevent standing employees being caught in the nip point created by the tires and the ground by pushing or knocking the employee out of the way.... A prudent employer would have installed guards on existing equipment after becoming aware of their availability and feasibility." As to the operation of the crane, no mechanical defects were detected, and there was no indication that the crane was operated recklessly. Brewer's vision impairment was not a factor in the death of Powell because the tarp obstructed his view of him. Concerning the employer's knowledge, the report provides that Prestress knew that crews frequently worked in close proximity to the crane and in overlapping areas such that the crane aided one crew while passing another which was performing tasks unrelated to the crane operation. According to the report, Prestress could have provided adequate protection to employees working in close proximity to the crane by adding tire guards and requiring nonessential employees to move away from the operation of the crane.

Mr. Brewer's statements contained in the report and in his deposition reveal that when he was operating the crane he checked the location of the crew members before moving. He believed that all employees were clear of the crane's path. Mr. Brewer also stated that, although he could not remember who was signaling him, he was being signaled to move forward at the time of Powell's death. The accident report identifies a temporary employee named Orlando Chisolm as the person giving signals at the time of Powell's death. Mr. Chisolm was never located. Herbert Tyson, crew chief of Powell's crew, and Leroy Pridgen, Jr., the crew chief of the other crew, both testified that the policy was that a signal man should always be directing the movement of the crane and that they thought there was a signal man at the time of Timothy Powell's death. However, neither man could identify who was signaling at the time of Powell's death.

The North Carolina Department of Labor cited Prestress for 4 violations--3 of which were serious--of the Occupational Safety and Health Act. Prestress was cited twice for violating G.S. § 95-129(1) (requiring employer to furnish to employees conditions of employment and a place of employment free from recognized hazards that are causing or likely to cause death or serious injury) for failing to protect employees working in close proximity to straddle cranes and for permitting Mr. Brewer to operate a crane without meeting the minimum physical requirements. The citation provided that Prestress could rectify the hazard by providing tire guards, training signal persons, and prohibiting workers within 5 feet of a moving crane. The fines from these violations totaled $1540.

Prestress had twice previously been cited for violations of the Occupational Safety and Health Act for incidents involving unsafe crane operations. In 1979, the North Carolina Department of Labor cited Prestress for violation of 29 C.F.R. § 1910.179(d)(2) and (3) and 29 C.F.R. § 1910.23(c)(1) for failing to provide a railing and footwalk on a crane. In 1983, the North Carolina Department of Labor cited Prestress for violation of 29 C.F.R. § 1910.180(j)(1)(i) for its failure to allow a minimum clearance of 10 feet between the top of a crane boom and an electrical power line which resulted in the death of one employee.

Plaintiff offered the affidavit of William Dickinson, the Vice President and Associate Director of the Crane Institute of America, in which he stated:

Based upon my review of the conditions attendant at the time of the crane death of Timothy Powell, as nearly as such can be determined based upon the statements of the persons who were present, and who were deposed and who spoke with the OSH[A] investigator and to the police, as well as my own review of reports and the scene, my conclusion is that the procedures and practices that were being followed by Prestress violated industry-wide standards regarding operation of cranes in proximity to workers, that new and inexperienced workers were placed into a work environment that was unsafe even for experienced personnel, that Prestress did not observe such common industry rules as maintaining clear passage and aisle ways in obstructed fashion, and that Prestress did not maintain barriers between dangerous machinery, i.e. cranes and its workers working within 36-40 inches of same, and thereby created an extremely and exceedingly high likelihood that the crane would come into contact with the workers and based upon the facts that existed, such was substantially certain to occur....

The question for our determination is whether the forecast of evidence is sufficient to show that Prestress intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death. Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). If plaintiff's forecast of the evidence is sufficient to show that there is a genuine issue of material fact as to whether Prestress' conduct meets the substantial certainty standard, then plaintiff is entitled to have her claim against Prestress tried by a jury. We...