Proctor v. North Shore Partners, Inc., CIV.A.1999/032.

• Decision Date: 23 September 2002
• Docket Number: No. CIV.A.1999/032.,CIV.A.1999/032.
• Citation: 232 F.Supp.2d 472
• Parties: Gilbert Don PROCTOR, Appellant/Cross-Appellee, v. NORTH SHORE PARTNERS, INC., Development Consultants, Inc., and Parallel Construction Corporation, Appellees/Cross-Appellants.
• Court: U.S. District Court — Virgin Islands

232 F.Supp.2d 472

Gilbert Don PROCTOR, Appellant/Cross-Appellee, v. NORTH SHORE PARTNERS, INC., Development Consultants, Inc., and Parallel Construction Corporation, Appellees/Cross-Appellants.

No. CIV.A.1999/032.

District Court, Virgin Islands, Appellate Division, D. St. Croix.

Considered: September 28, 2001.

Filed: September 23, 2002.

Thomas H. Hart, Charles S. Siegel, St. Croix, VI, for Appellant/Cross-Appellee.

Douglas L. Capdeville, James L. Hymes, III, St. Croix, VA, for Appellees/Cross-Appellants.

Before: RAYMOND L. FINCH, Chief Judge, District Court of the Virgin Islands; THOMAS K. MOORE, Judge of the District Court of the Virgin Islands; and RHYS S. HODGE, Judge of the Territorial Court of the Virgin Islands, Division of ST. THOMAS and ST. JOHN, Sitting by Designation.

OPINION OF THE COURT

PER CURIAM.

Gilbert Don Proctor ("appellant/cross-appellee" or "Proctor") fell from a roof being constructed at the King's Alley Arcade ("King's Alley") and brought an action for damages in the Territorial Court. Proctor sought to recover medical expenses, pain and suffering, impairment, disability, lost earnings and lost earning capacity. At the close of Proctor's case, North Shore Partners, Inc. ("North Shore"), Development Consultants, Inc. ("Development"), and Parallel Construction Corporation ("Parallel") (collectively referred to as "appellees") moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). The Territorial Court granted judgment as a matter of law on all claims in favor of appellees. Proctor now appeals that decision and presents the following issues for review:

1. Whether the Territorial Court erred in holding that there was no evidence from which the jury could reasonably infer that appellees knew, or should have known, of the presence of oil on the galvanized sheeting.

2. Whether the Territorial Court erred in holding that, as matter of law, there was no evidence of "active participation" by appellees in the roofing work.

3. Whether the Territorial Court erred in holding that, as a matter of law, the roofing work did not present a "peculiar risk," within the meaning of the Restatement (Second) of Torts §§ 416 and 427.

Appellees cross-appealed for this Court to determine whether the Territorial Court erred in finding that Proctor did not assume the risk of his injuries. For the reasons stated below, the January 22, 1999 Judgment of the Territorial Court is affirmed.

FACTS

Development holds a Master Lease for certain premises located in King's Alley, and is the owner/developer of the King's Alley project. On May 14, 1995, Development hired Parallel as the general contractor for the construction of buildings and improvements at King's Alley. Parallel, in turn, hired various subcontractors to perform particular jobs at King's Alley.

On August 3, 1995, North Shore was hired by Parallel to install the roofing and other work at a total contract price of Six Hundred Eighty-Five Thousand Three Hundred Ninety-Five Dollars ($685,395.00). The portion of that money allocated to the roofing work on the building at issue, Building 8, was Fourteen Thousand Three Hundred Dollars ($14,300.00). North Shore subcontracted the roofing work to Graci Brothers via an oral contract. (Joint Appendix ("J.A.") at 337B-341, 342.)

Graci Brothers is owned by Samuel and Rodney Graci. In February 1996, Graci Brothers hired Delroy George ("George") to do part of the roofing work on Building 8. George, who had neither a business license nor a contractor's license, commenced work on February 29, 1996. George alleges that he was supervised and paid by Rodney Graci. (Id. at 99.) George further contends that he was never given any documents detailing safety instructions or Occupational Safety and Health Administration ("OSHA") guidelines. (Id. at 73-74.)

On March 1, 1996, George's second day on the job, he and two employees, Adonis "Dennis" McCoy ("McCoy") and Joseph Parris, Jr. ("Parris") were installing galvanized metal sheeting (commonly referred to as "galvanize") on the roof of Building 8. At the time relevant to this discussion, McCoy and Parris were on the roof, and George was on a lower level cutting installation. George saw Proctor walking in the alley below, and invited him to inspect the work being done on the roof. Proctor and George had worked together on several jobs in the past, and George testified that he hoped Proctor, an experienced contractor, would advise him whether the work performed was properly done, not only for his benefit, but also for the benefit of North Shore. (Id. at 65.)

When Proctor got to the roof, he greeted McCoy and Parris and stepped onto the galvanized sheeting to walk in the direction of the workmen. Proctor testified that he did not think he needed a rope to walk across the galvanized sheeting, because his practice all his adult life had been to step on the screw heads. (Id. at 220-21.) There are differing accounts of what happened next. Proctor testified that he took no more than two steps before he slipped and slid over the side of the roof approximately 26-28 feet to a ditch below. McCoy testified, on the other hand, that Proctor had walked "[a] good distance" on the roof before he fell. (J.A. at 140.) Stephen Hendren ("Hendren"), the Vice President of Development and President of Parallel, testified that in a conversation with Proctor several months after the accident, Proctor stated that he had "messed up and tripped and fell." (Id. at 426.)

Proctor's injuries included a compound fracture of his left arm with torn skin and exposed bone, a fractured right heel, a chipped bone in his back, fractured ribs, a cracked pelvic bone, a bruised aorta and a collapsed lung. (Id. at 178.) As a result, he underwent extensive medical treatments and rehabilitation over the next several months. Not surprisingly, the cause of Proctor's fall, as well as which party bore the responsibility of providing safety equipment were hotly contested issues at trial.

At the close of Proctor's case-in-chief, appellees moved for a directed verdict pursuant to Federal Rule of Civil Procedure 50. The trial judge granted appellees' motions, and dismissed this matter. This appeal followed.

I. DISCUSSION

A. Jurisdiction and Standard of Review

This Court has jurisdiction to review the judgments and orders of the Territorial Court in all civil cases pursuant to v.I. CODE ANN. tit. 4, § 33 (1997 & Supp. 2001); Section 23A of the Revised Organic Act of 1954.¹ The Federal Rules of Civil Procedure provide that:

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

FED. R. CIV. P. 50(a)(1).² This Court exercises plenary review of the Territorial Court's grant of judgment as a matter of law. See Alexander v. University of Pittsburgh Med. Ctr., 185 F.3d 141, 145 (3d Cir.1999).

B. The Territorial Court did not err in holding that there was no evidence from which the jury could reasonably infer that appellees/cross-appellants knew, or should have known, of the presence of oil on the galvanized sheeting.

Proctor admits that he did not go to the roof on March 1, 1996 on the request of anyone from Development, Parallel or North Shore, and he was not an employee of either George or any of the appellees. He was on the roof solely on George's invitation. Proctor argues, however, that the trial court erred as a matter of law in concluding that no reasonable jury could find that appellees knew or should have known of the presence of oil on the galvanize. (Brief of Appellant/Cross-Appellee at 14.)

George Jefferson Greene, Jr. ("Greene"), a consulting engineer specializing in accident reconstruction, failure analysis and safety engineering, concluded that missing screws alone would not have caused Proctor's fall. (Id. at 252, 298.) Greene further testified that Proctor's fall was caused by the presence of oil on the galvanize. (Id. at 301.) In Greene's opinion, the primary responsibility for safety lay with the general contractor, Parallel, and North Shore as the subcontractor was "certainly aware of the need for this safety equipment." (Id. at 271.) Greene also testified that under George's contract he did not, and could not supply any safety equipment, mainly because the amount he was paid to perform the roofing work was insufficient to expect him to assume that responsibility. (Id. at 271, 288.) George alleged that he was paid approximately $2,700.00 to perform the work (id. at 49), but Samuel Graci testified, and supplied evidence of checks, that George was paid approximately $4,300.00 (id. at 351, 369). Because Greene testified that it was a "common practice" for galvanize to arrive with oil from the manufacturer, Proctor argues that the jury could have inferred that appellees knew or should have known of the risk posed by the oil from circumstantial evidence. (Id. at 14-15.)

Development and Parallel contend, on the other hand, that "none of the [a]ppellees testified about knowing of this alleged `common practice', and [a]ppellant has not and cannot point to one iota of concrete evidence in the record to support his speculative argument that [a]ppellees knew of the presence of oil on the galvanized sheeting. Likewise, any knowledge of Delroy George or his crew about observing oil on the galvanized sheeting cannot be imputed to [a]ppellees." (Brief for Appellees/Cross-Appellants Development and Parallel at 11.)

North Shore argues that it had no employees at Kings Alley on the day of the accident, and more importantly, had no employees on the roof prior to Proctor's fall; that it had...