Presley v. Commercial Moving & Rigging Inc., s. 07–CV–341

• Decision Date: 28 July 2011
• Docket Number: 07–CV–399.,Nos. 07–CV–341,s. 07–CV–341
• Citation: 25 A.3d 873
• Court: D.C. Court of Appeals
• Parties: Charles E. PRESLEY and Victoria D. Presley, Appellants/Cross–Appellees,v.COMMERCIAL MOVING & RIGGING, INC. and CMR Leasing, Inc., Appellees/Cross–Appellants,andJacobs Engineering Group, Inc., Jacobs Facilities, Inc. f/k/a Sverdrup Facilities, Inc., and CRSS Constructors, Inc., Appellees.

25 A.3d 873

Charles E. PRESLEY and Victoria D. Presley, Appellants/Cross–Appellees,

v.COMMERCIAL MOVING & RIGGING, INC. and CMR Leasing, Inc., Appellees/Cross–Appellants,andJacobs Engineering Group, Inc., Jacobs Facilities, Inc. f/k/a Sverdrup Facilities, Inc., and CRSS Constructors, Inc., Appellees.

Nos. 07–CV–341

07–CV–399.

District of Columbia Court of Appeals.

Argued March 26, 2009.Decided July 28, 2011.

D. Stephenson Schwinn and David B. Stratton, Washington, DC, for appellants /cross-appellees Charles E. Presley and Victoria D. Presley.J. Michael Hannon, Washington, DC, for appellees/cross-appellants Commercial Moving & Rigging, Inc. and CMR Leasing, Inc.Richard H. Kuhlman, with whom James D. Griffin and Thomas S. Schaufelberger, Washington, DC, were on the brief, for appellees Jacobs Engineering Group, Inc., Jacobs Facilities, Inc. f/k/a Sverdrup Facilities, Inc., and CRSS Constructors, Inc.Before RUIZ, BLACKBURNE–RIGSBY, and THOMPSON, Associate Judges.BLACKBURNE–RIGSBY, Associate Judge:

This appeal arises from an accident in which appellant Charles Presley (“Presley”), a construction worker renovating the main United States Department of State (“State Department”) building, was injured after falling from a twenty-foot high cooling tower assembly. Appellants Charles and Victoria Presley brought suit against both the operator of the crane, CMR,¹ and a consultant to the construction project charged with monitoring the project, CRSS,² who appellants allege should have ensured that proper safety procedures were being followed at all times at the workplace. At trial, appellants attempted to prove that Presley was injured because he was knocked off the tower by CMR's crane and that proper safety protections that would have prevented his fall were not in use at the workplace. At the close of evidence, the trial court granted judgment as a matter of law in favor of CRSS on the basis that CRSS owed no legal duty of care to Presley. In addition, the jury returned a verdict in favor of CMR.

Appellants raise several issues on appeal. Appellants' principal contention is that the trial court erred in granting judgment as a matter of law to appellee CRSS on the basis that, as a consultant to the State Department, it owed no legal duty to the construction workers, such as Presley, employed by the general contractor, Grimberg Engineering Company (“Grimberg”), to ensure that safety precautions were followed at the construction site. Specifically, appellants argue that CRSS, which was not a party to the construction contract, nonetheless owed Presley either a statutory duty arising under the District of Columbia Industrial Safety Act (“ISA”),³ or a common-law tort duty to protect workers on the construction project from safety hazards. Appellants' remaining claims relate solely to the trial against CMR.⁴ They contend that the trial court abused its discretion by: 1) excluding an accident report as inadmissible hearsay; 2) admitting for impeachment purposes a witness' prior statement during an interview conducted by a workers' compensation insurance investigator; 3) failing to provide an immediate limiting instruction on the use of impeachment evidence; and 4) excluding the other portions of the witness' interview in violation of the rule of completeness. Appellants further claim that the trial court erred by denying their motion for judgment notwithstanding the verdict in CMR's favor and refusing to give a jury instruction on their theory of liability. We conclude that, under the circumstances of this case, CRSS owed no legal duty to Presley, and the remaining issues relating to CMR do not warrant reversal. Accordingly, we affirm the trial court's judgment.

I. Background

A. Facts

In 1991, the State Department contracted with Grimberg to perform renovation and construction on the main State Department building. Presley, a pipefitter with thirty-eight years of experience, was employed by Grimberg as a foreman to facilitate the assembly of eight giant cooling towers for installation on the roof of the building. Grimberg was responsible for directing the assembly of the tower components on a nearby athletic field before they were airlifted to the building's roof. Grimberg contracted with CMR to truck the tower parts to the athletic field, and to provide a crane at that location to hoist and assemble the tower parts.

The State Department, via the General Services Administration (“GSA”), entered into a separate Construction Quality Manager contract (“CQM contract”) with CRSS to serve as a contract compliance consultant. Generally, CRSS' main responsibility was to assist the GSA with ensuring that the project was completed according to specifications, on time, and within budget. The CQM contract provided:

[CRSS] is the Contractor selected to assist the [GSA] by performing required work in the Predesign, Design, Procurement, and Construction Phases, and Claims and Miscellaneous Services as specified in the contract. In providing the project services described in this contract, [CRSS] shall maintain a working relationship with the architect-engineer and construction contractors.

More specifically, the CQM contract required CRSS “to anticipate problems and immediately act to preclude or mitigate any negative effects on the construction project(s).” The CQM contract also provided that CRSS would employ inspectors who were “responsible for scheduling, coordinating, and performing the actual specialized field inspection work commensurate with their designated adjectival discipline.” These inspectors were also required to:

[P]hysically inspect work at the site(s); review all construction work for code compliance and adherence to construction contract requirements; recommend approvals or rejections of materials and workmanship as appropriate; monitor labor and safety requirements; prepare and complete written inspection reports for every inspection; process field reports, including progress reports, testing reports, labor interviews, etc., through the [Quality Control Superintendent] to the Government.

The CQM contract further provided that:

[CRSS] is not responsible for and will not have control or charge of construction means, methods, techniques, sequences or procedures; safety programs or procedures; or for acts or omissions of other contractors, agents or employees, or any other persons performing any of the work.

The CQM contract contained a general disclaimer:

Nothing in this contract shall be construed to mean that [CRSS] assumes any of the contractual responsibilities or duties of the architect-engineer or construction contractors. The construction contractor is solely responsible for construction means, methods, sequences and procedures used in the construction of the project, and for related performance in accordance with its contract with the Government.

The record contains several safety reports authored by CRSS employees pertaining to the project. These safety reports detail safety violations observed by CRSS inspectors, as well as any subsequent action taken by the inspectors. As the CQM contract directs and the safety reports indicate, CRSS inspectors authored the reports and sent them to CRSS superiors. The reports were then forwarded to the GSA for review, and GSA would in turn forward the reports to Grimberg.⁵ Each report included the following language:

The contract between [CRSS] and GSA outlines a few safety responsibilities that includes [sic], reporting on safety infractions that the contractor incurs and other safety deficiencies observed. [CRSS] also has the authority to ‘stop work’ for imminent danger situations observed. [CRSS] is not responsible for performing periodic and exhaustive surveys of the work environment in regard to safety.(emphasis added). The reports indicate that, in several instances, CRSS inspectors observed employees violating safety procedures. The reports also indicate that work was stopped until the proper safety equipment was put into use and that supervisors were “cautioned on the process” or “notified for correction.” The reports, do not, however, indicate who directed that work be stopped.

On January 7, 2000, Presley was one of several workers who were assembling the components for each of the eight cooling towers—a base cube, a top cube, and a fan shroud ⁶—on the athletic field near the main State Department building. CMR was to hoist the top cubes onto the base cubes using a crane. The stacked base and top cubes had a height of approximately twenty feet. After assembling the base and top cubes, CMR was to hoist the fan shrouds to the top of each tower. Presley and other Grimberg employees would then use a single ladder to climb to the top of each tower in order to set the fan shroud over the opening and bolt it into place.

At the time of the accident, Presley and his crew were placing the fan shroud on the seventh cooling tower. Presley placed the ladder on the south side of the cooling tower and climbed to the top. After observing that the crane operator had already lowered the fan shroud in place above the cooling tower, Presley directed the operator to swing the fan shroud away to the east. Presley planned to walk to the north side of the tower while crew members climbed the ladder on the south side of the tower. From those positions, they would work together to direct the placement of the fan shroud and bolt it down. The top of the cooling tower was rectangular with a circular opening in the center. To move from the south side to the north side of the tower, Presley had to walk across the expanse of the tower along a four-inch-wide ledge between the circular opening and the edge of the cooling tower. Presley testified that he had performed this type of maneuver “probably a dozen [times] over [his] career or maybe even more than that.” After the crane operator moved the fan shroud, Presley turned his back to the crane and started across the narrow ledge...