Sloan v. Miller Bldg. Corp.

• Decision Date: 02 December 1997
• Docket Number: No. COA96-1464,COA96-1464
• Citation: 493 S.E.2d 460,128 N.C.App. 37
• Parties: Landon W. SLOAN, Jr. and wife, Phyllis Fay Sloan, Plaintiffs, v. MILLER BUILDING CORPORATION, Defendant.
• Court: North Carolina Court of Appeals

Page 460

493 S.E.2d 460

128 N.C.App. 37

Landon W. SLOAN, Jr. and wife, Phyllis Fay Sloan, Plaintiffs, v. MILLER BUILDING CORPORATION, Defendant.

No. COA96-1464.

Court of Appeals of North Carolina.

Dec. 2, 1997.

Armstrong & Armstrong, P.A. by L. Lamar Armstrong, Jr., and Marcia Kaye Stewart, Smithfield; Narron O'Hale & Whittington P.A. by John P. O'Hale, Smithfield, for plaintiff-appellees.

Marshall, Williams & Gorham, L.L.P. by Ronald H. Woodruff, Wilmington, for defendant-appellant.

JOHN C. MARTIN, Judge.

Defendant Miller Building Corporation appeals from a judgment entered upon a jury verdict finding that plaintiff, Landon W. Sloan, Jr., was injured by defendant's willful or wanton negligence and awarding him damages of $454,000 for his personal injuries and his wife, Phyllis Fay Sloan, damages of $40,000 for loss of consortium. This case has been previously considered by this Court upon plaintiffs' appeal from an order granting defendant's motion for summary judgment; summary judgment was reversed and the case was remanded for trial. Sloan v. Miller Bldg. Corp., 119 N.C.App. 162, 458 S.E.2d 30, disc. review denied, 341 N.C. 652, 462 S.E.2d 517 (1995).

Briefly summarized, and only to the extent necessary to an understanding of the issues raised on appeal, the evidence at trial tended to show that defendant was the general contractor for the Campus Edge Phase II Condominium Project in Wilmington, N.C.; plaintiff was hired by defendant as a subcontractor to complete the exterior carpentry trim on the building. On Monday, 21 October 1985, plaintiff was working on the third floor of the structure. In order to remove himself from the path of other workers who were carrying construction materials, plaintiff backed up and sat on a scaffold at the open edge of the floor while he talked with some other carpenters about the work they were doing. The scaffold collapsed and plaintiff fell three floors to the ground, sustaining serious injuries.

The evidence showed that defendant had not placed any standard barrier protection around the perimeter of the third floor as required by OSHA standards; the only barrier protection which had ever been provided consisted of ropes tied to each post around the third floor perimeter. Those ropes had been removed on Saturday, 19 October 1985, by the painting contractor so that the posts could be painted. Neither the painting contractor nor defendant had replaced the ropes or erected any other barrier protection around the perimeter. When plaintiff arrived at work on the following Monday morning, 21 October 1985, he noticed that the ropes had been removed, but he made no effort to replace the ropes nor did he ask defendant to replace them. There was also evidence tending to show that defendant had been cited by OSHA compliance officers on multiple occasions for its failure to provide adequate barrier protection on open sided floors.

I.

Plaintiff Landon Sloan originally filed his complaint against Miller Building Corporation on 11 July 1986; Phyllis Fay Sloan was not a party to that action. Landon Sloan submitted to a voluntary dismissal without prejudice of his claim on 10 October 1988. On 6 October 1989, plaintiffs filed their complaint in this action, which included a claim on behalf of Phyllis Fay Sloan for loss of consortium. Defendant moved to dismiss Phyllis Fay Sloan's claim on the grounds that the claim was barred by the statute of limitations. Defendant's Assignment of Error No. 1 is to the denial of its motion to dismiss Phyllis Fay Sloan's action for loss of consortium.

G.S. § 1-52(5) is the statute of limitations applicable to a spouse's claim for loss of consortium and requires that the claim be brought within three years from the time the cause of action accrues. Under North Carolina law, a spouse's claim for loss of consortium must be joined with the other spouse's claim for personal injury. Nicholson v. Hugh Chatham Memorial Hospital, Inc., 300 N.C. 295, 266 S.E.2d 818 (1980). Our Supreme Court has held that a spouse's cause of action for loss of consortium is not barred by the statute of limitations so long as the original negligence claim of the injured spouse is not so barred. Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984).

In the present case, defendant's allegedly negligent acts occurred on 21 October 1985; the three year statute of limitations for Phyllis Sloan's loss of consortium action would ordinarily have run on 21 October 1988. However, on that date, Landon Sloan's cause of action for personal injury was not in existence, having been voluntarily dismissed without prejudice on 10 October 1988, and Phyllis Fay Sloan could not have brought her derivative claim for loss of consortium at that time. When Landon Sloan voluntarily dismissed his original action for personal injury without prejudice, he effectively extended the time within which he could re-file the claim beyond the three year limitation of G.S. 1-52(5). Whitehurst v. Virginia Dare Transportation Co., 19 N.C.App. 352, 198 S.E.2d 741 (1973). Because his spouse's cause of action for loss of consortium was required to be joined with his personal injury claim, we hold that the effect of Landon Sloan's voluntary dismissal was also to extend the time within which Phyllis Fay Sloan could assert her derivative cause of action coextensive with the time within which he could re-file his personal injury claim. Thus, when Landon Sloan re-filed his personal injury claim within the time permitted by G.S. § 1A-1, Rule 41(a), Phyllis Fay Sloan had the right to join with it her derivative cause of action for loss of consortium. Defendant's motion to dismiss was properly denied and its first assignment of error is overruled.

II.

Defendant's Assignment of Error No. 3 is directed to the denial of its motion for directed verdict on the issue of its willful or wanton negligence. Defendant contends there was insufficient evidence of willful and wanton negligence to overcome the bar of Landon Sloan's recovery by reason of his own contributory negligence and that the issue should not have been submitted to the jury.

In its opinion in the previous appeal of this case, another panel of this Court determined that at the summary judgment stage of the proceeding plaintiffs had forecast sufficient evidence of willful and wanton negligence on the part of Miller Building Corporation so that "reasonable jurors could differ on the question of whether the conduct of defendant ... constituted willful or wanton misconduct sufficient to overcome the bar of Sloan's contributory negligence." Sloan, at 169, 458 S.E.2d at 34. Where an appellate court decides questions and remands a case for further proceedings, its decisions on those questions become the law of the case, both in the subsequent proceedings in the trial court and upon a later appeal, where the same facts and the same questions of law are involved. Tennessee-Carolina Transp., Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974).

The legal question presented by defendant's motion for directed verdict is essentially the same as that presented by its motion for summary judgment, i.e., "whether there is sufficient evidence to sustain a jury verdict in [plaintiff's] favor ... or to present a question for the jury." Davis v. Dennis Lilly Co., 330 N.C. 314, 323, 411 S.E.2d 133, 138 (1991). Therefore, we must look to see if the evidence of defendant's willful or wanton negligence presented at the trial of this case was the same as was forecast at the summary judgment stage.

In reversing summary judgment, the court held that plaintiffs had shown sufficient evidence to establish a jury issue as to defendant's willful or wanton negligence by forecasting evidence that Miller lacked basic safety procedures at the job site where plaintiff was injured; that it had been indifferent to, and had failed to comply with, OSHA standards for standard railings or their equivalent barrier protection on that job site; and that defendant had a pattern of noncompliance with, and conscious disregard of, OSHA standards on its other job sites, including those standards relating to safety railings.

At trial, plaintiffs offered evidence that defendant was aware of its obligation to erect standard safety railings on open floors; defendant's safety consultant testified that it was the general contractor's responsibility to erect proper barrier protection and that ropes tied to beams were not sufficient. Defendant's superintendent on the Campus Edge job, who was also the job's safety coordinator, had received a report a month before plaintiff's accident indicating the lack of railings, but had taken no remedial action. Plaintiffs also offered evidence tending to show that defendant had, in the two and one-half year period prior to plaintiff's injury, been cited by OSHA inspectors on seven occasions for failure to have guardrails on open sided floors. Phase One of the Campus Edge project had been cited for not having guardrails in May 1984. There was also evidence tending to show that a previous subcontractor had requested that defendant provide material for a guardrail when he reached the second floor of the building and that defendant had refused the request. The rope barrier, which did not meet OSHA regulations, was put in place only after construction had reached the third floor.

Considering the evidence in the light most favorable to plaintiffs, as is required when ruling upon a defendant's motion for directed verdict, we hold it sufficient for reasonable jurors to find that defendant was willfully or wantonly negligent. See Estate of Smith v. Underwood, 127 N.C.App. 1, ----, 487 S.E.2d 807, 815 (1997) (directed verdict should be granted only if the trial judge could properly conclude that no reasonable juror could find for plaintiffs). The trial court properly denied defendant's motion for directed verdict.

In a related assignment of error, defendant's Assignment of...