Bosley v. Shepherd ( 2001 )

Present: All the Justices
ROBERT BOSLEY, ET AL.
v. Record No. 002735 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 2, 2001
MICHAEL A. SHEPHERD, et al.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
In this appeal, we consider issues arising from the trial
of a personal injury action brought by a worker against the
general contractor of a construction project, one of the general
contractor's employees, and a steel erection subcontractor.
Michael A. Shepherd was injured in November 1996 while
using a boom crane to deposit gypsum sheathing (sheetrock) into
a second-floor opening of a building under construction at the
Dam Neck Naval Installation in Virginia Beach. The United
States Navy, owner of the construction project, entered into a
contract with W.B. Meredith, II, Inc. (Meredith), which provided
for Meredith’s services as general contractor of the project.
Meredith contracted with various subcontractors to provide
certain construction services, including Virginia-Carolina
Steel, Inc., to perform the steel fabrication and erection
portion of the general contract. Virginia-Carolina Steel, in
turn, contracted with Atlantic Welding & Fabricating, Inc.
(Atlantic Welding) to provide the steel erection work for the
project.
Additionally, Meredith contracted with Wenger Tile and
Plastering Co., Inc. (Wenger) for the drywall installation
portion of the general contract. Wenger contracted with Gypsum
Management & Supply, trading as Tidewater Interior Products
(TIP), a drywall company and supplier of sheetrock, to supply
sheetrock for the construction project. TIP employed Shepherd
to transport the sheetrock to the construction site and to
operate TIP’s boom crane, which was used to place the sheetrock
at specific locations at the site.
Upon arrival at the construction site, Shepherd’s co-
worker, Christopher Scott Hewitt, contacted Wenger's project
superintendent, Jonathan McGowan, Jr., and Wenger's foreman,
Darrell Ashley, to receive instructions concerning “offloading”
the sheetrock. Hewitt, McGowan, and Ashley conferred with
Meredith’s construction superintendent and co-defendant, Robert
J. Bosley, to determine the proper locations at which to place
the sheetrock.
Shepherd used a TIP truck to deliver the loads of sheetrock
to the project site. At the site, he used a hydraulic boom
crane, mounted on top of the truck, to lift and place several
bundles of sheetrock, called “hacks,” onto the first and second
floors of the open structure. At the direction of McGowan and
2
Ashley, Shepherd later moved his boom crane to the southeast
corner of the structure to place additional hacks in a different
location on the second floor.
Shepherd’s ability to maneuver the crane's boom arm inside
the second-floor opening was restricted by a horizontal steel
girt. The steel girt was a hollow square beam that was placed
on brackets several feet above the floor across the top of the
opening of the second deck of the structure. The brackets were
attached to the vertical steel columns of the structure. The
girt was about 29 feet long and weighed about 1700 pounds. The
distance between the girt and the ground was about 20 feet.
In order to move the sheetrock hacks to the designated
second-floor location, it was necessary for Shepherd to insert
and retract the boom arm in between the girt and the second
floor. When performing this maneuver, Shepherd had a clearance
space of between three and four inches from the top of the boom
arm to the bottom of the steel girt.
On Shepherd’s first attempt to maneuver the boom arm into
this opening, he successfully unloaded two hacks of sheetrock.
On Shepherd’s second attempt, he deposited two more hacks. As
the boom arm retracted, it made contact with the steel girt.
Hewitt observed that the steel girt was "teetering" on top
of the boom arm between six and seven inches off the girt’s
brackets. Hewitt shouted to Shepherd to alert him to the
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dangerous situation. As Shepherd attempted to jump out of the
crane operator’s chair, the girt slid down the crane's arm and
struck him, causing him serious injuries.
Shepherd filed a motion for judgment in the trial court
against Meredith, Bosley, and Atlantic Welding, alleging that he
was seriously injured as a result of the defendants’ negligence.
Shepherd alleged, among other things, that the defendants were
negligent in failing to secure the girt adequately to its
brackets, and in failing to warn all others on the construction
site that the girt was not properly secured.
At trial, Hewitt and McGowan testified that Bosley was told
that some sheetrock hacks would be placed on the second floor at
the southeast corner of the structure. Hewitt stated that
Bosley gave Hewitt permission to remove the safety cable at the
southeast opening on the second floor to prevent the cable from
obstructing the path of the boom arm.
Shepherd also presented evidence that the steel girt in
question was not "tack welded" or otherwise secured to its
brackets. A tack weld is a temporary weld used by steel
erection workers to hold a girt in place until it is properly
aligned with other girts throughout the structure. Once all the
girts are properly aligned, they are secured with permanent
welds.
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Manuel Seoane, a safety investigator for the Navy,
testified that his inspection of the girt struck by the boom
arm, and the bracket on which the girt was placed, revealed no
evidence of any welding. Seoane concluded that the girt fell
because it had not been “tacked into position and secured.”
Seoane also stated that Peter G. Godfrey, a foreman for Atlantic
Welding, admitted that the girt that struck Shepherd had not
been tack welded. However, Godfrey testified that when he made
this statement, he was referring to permanent welding, not tack
welding.
Shepherd presented the expert testimony of Frank Burg, an
occupational safety and health consultant. The defendants filed
a motion in limine, requesting that Burg be prohibited from
testifying that the defendants violated the Occupational Safety
and Health Act of 1970 (OSHA). 29 U.S.C. §§ 651 through 700
(1994). The defendants argued, among other things, that "Burg
has not identified any specific code, regulation or standard of
any type that addresses the erection and placement of steel
girts of the type that injured [Shepherd]." The trial court
denied the defendants’ motion.
Burg testified that the defendants violated 29 U.S.C.
§ 654, OSHA’s “general duty” clause, which he stated requires an
employer to keep the workplace free from recognized hazards that
could cause death or serious physical harm. Burg also stated
5
that he considers an OSHA violation to have occurred whenever
someone is seriously injured on a job, unless the injury was
caused by employee misconduct or an "act of God."
Burg concluded that Shepherd's accident could have been
prevented if the defendants either had secured the girt or had
blocked access to the area beneath the girt. Burg testified
that Meredith, as the general contractor, had the responsibility
under OSHA to ensure that the staging and coordination of work
on the job site was performed in accordance with applicable
safety standards. Burg stated that OSHA required the defendants
to analyze safety hazards and to implement and follow a work
safety program. Burg opined that if there had been an adequate
safety program in place and if sufficient inspections had been
made, the accident would not have occurred.
During the defendants' case, Bosley testified that he did
not instruct Hewitt, McGowan, or Ashley to deposit sheetrock at
the southeast corner of the second floor, and that he did not
authorize the removal of any safety cables at that location.
Bosley further stated that he thought that the girt in question
was secured properly by a weld.
The defendants also presented evidence that the girt was
tack welded to its brackets. Frankie L. Brock, an ironworker
for Atlantic Welding, testified that he personally tack welded
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the steel girt, and that he was “positive” that he secured the
girt in this manner at both ends.
In addition, the defendants presented testimony from
experts in the steel erection and welding industries. These
experts included Richard Leland, a registered civil engineer,
Brock, and Edwin W. Shelton, owner and president of Virginia
Steel. These experts testified that photographs taken of the
girt immediately after the accident revealed burn marks and
other indications of tack welding.
The jury returned a verdict for Shepherd against Bosley and
Meredith and awarded damages in the amount of $325,000. The
jury also returned a verdict in favor of Atlantic Welding. The
trial court denied the motion of Bosley and Meredith to set
aside the verdict and entered final judgment in accordance with
the verdict. Bosley and Meredith appealed from this judgment.
On appeal, Bosley and Meredith (collectively, the
defendants) argue that Shepherd was the statutory employee of
Meredith under the Virginia Workers’ Compensation Act (the Act),
Code §§ 65.2-100 through -1310 and, thus, was barred from
bringing a common law negligence action against the defendants.
They contend that Shepherd was engaged in an act of
construction, rather than of delivery of materials, at the time
he was injured because he was required to use “specialized”
equipment at different locations on the job site to deposit the
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sheetrock. The defendants assert that Shepherd’s use of a boom
crane distinguishes the present case from our decisions that
have held that the mere delivery of construction materials to a
job site does not constitute part of a general contractor’s
trade, business, or occupation. We disagree with the
defendants’ arguments.
The exclusivity provision of the Act, which is found in
Code § 65.2-307, limits the rights and remedies of an employee
to those provided in the Act when he and his employer have
accepted the provisions of the Act for payment of compensation
for accidental injury or death. Fowler v. Int'l Cleaning Serv.,
Inc., 260 Va. 421, 425, 537 S.E.2d 312, 313 (2000); Stone v.
Door-Man Mfg. Co., 260 Va. 406, 412, 537 S.E.2d 305, 307 (2000).
However, the exclusivity provision does not bar a common law
action for an employee’s injury or death against an “other
party,” as construed under the Act. Code § 65.2-309; Fowler,
260 Va. at 425, 537 S.E.2d at 314; Stone, 260 Va. at 412, 537
S.E.2d at 307-08; Stewart v. Bass Constr. Co., 223 Va. 363, 365-
66, 288 S.E.2d 489, 490 (1982).
The issue whether a particular person or entity is the
statutory employer of an injured employee is a jurisdictional
matter presenting a mixed question of law and fact that must be
determined under the facts of each case. See Fowler, 260 Va. at
425, 537 S.E.2d at 314; Stone, 260 Va. at 413, 537 S.E.2d at
8
308; Cooke v. Skyline Swannanoa, Inc., 226 Va. 154, 156, 307
S.E.2d 246, 247 (1983). Since the facts before us regarding
this issue are not in dispute, we examine whether the trial
court correctly applied the law to those facts. See Fowler, 260
Va. at 425, 537 S.E.2d at 314; Stone, 260 Va. at 413, 537 S.E.2d
at 308; Cinnamon v. Int'l Bus. Machs. Corp., 238 Va. 471, 474,
384 S.E.2d 618, 619 (1989).
A general contractor is the statutory employer of a
subcontractor’s injured employee if the employee is engaged in
the trade, business, or occupation of the general contractor at
the time of his injury. Yancey v. JTE Constructors, Inc., 252
Va. 42, 44, 471 S.E.2d 473, 474 (1996); Sykes v. Stone & Webster
Eng’g Corp., 186 Va. 116, 121-22, 41 S.E.2d 469, 472 (1947).
However, when an injured employee reaches an employer in the
ascending hierarchy of contractors whose trade, business, or
occupation does not include the work being performed by the
injured employee, that employer is not the statutory employer of
the injured employee. Yancey, 252 Va. at 44, 471 S.E.2d at 474;
Sykes, 186 Va. at 121-22, 41 S.E.2d at 472.
We have held repeatedly that a subcontractor’s employee who
merely delivers materials to a job site is not engaged in the
trade, business, or occupation of the general contractor.
Yancey, 252 Va. at 44, 471 S.E.2d at 474-75; Hipp v. Sadler
Materials Corp., 211 Va. 710, 711, 180 S.E.2d 501, 501-02
9
(1971); Burroughs v. Walmont, Inc., 210 Va. 98, 100, 168 S.E.2d
107, 108 (1969); see Peck v. Safway Steel Prods., Inc., 262 Va.
522, 526, 551 S.E.2d 328, 329-30 (2001). In contrast, when an
injured employee’s duties extend beyond delivery of materials to
the job site, and the employee performs an act that is an
essential part of the work of the general contractor, the
injured employee has engaged in the trade, business, or
occupation of the general contractor. See Peck, 262 Va. at 528,
551 S.E.2d at 330; Bosher v. Jamerson, 207 Va. 539, 542-43, 151
S.E.2d 375, 377 (1966).
The present case is controlled by our decisions in Yancey,
Hipp, and Burroughs. In all three cases, we held that the
injured employees were not engaged in the general contractors'
trade, business, or occupation because their activities at the
respective job sites constituted final acts of delivery, not
acts of construction. In Yancey, the injured employee’s final
act of delivery included the inspection and patching of concrete
panels delivered to the job site. 252 Va. at 45, 471 S.E.2d at
475. In Hipp, the injured employee was a mere delivery person
because he poured concrete where directed by another
subcontractor, but did not engage in spreading or finishing the
concrete after it was poured. 211 Va. at 711, 180 S.E.2d at
502.
10
Our decision in Burroughs was based on facts remarkably
similar to those presented here. The plaintiff in Burroughs was
an employee of a trucking company hired to deliver sheetrock to
a construction site and to stack specific quantities of the
material in certain rooms of various houses under construction.
The plaintiff was injured while manually carrying some pieces of
sheetrock up a stairway in one of the houses. 210 Va. at 99,
168 S.E.2d at 108. We concluded that the plaintiff’s act of
stacking the sheetrock in the several rooms constituted a final
act of delivery, not an act of construction. Thus, we held that
the plaintiff was not engaged in the general contractor’s trade,
business, or occupation, and that the general contractor was an
“other party” subject to being sued by the plaintiff in a common
law negligence action. Id. at 100, 168 S.E.2d at 108-09.
Like the plaintiff in Burroughs, Shepherd was injured while
placing sheetrock at a construction site in locations specified
by the general contractor and its employees. The nature of the
work that Shepherd performed is not altered by the fact that he
used a crane to place the materials at the required locations.
His actions remained ones of delivery, not of construction,
because when he used the crane to place sheetrock at the
specified locations, he did not engage in any other action
regarding the sheetrock to further the work of the general
contractor. Therefore, we hold that the trial court correctly
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concluded that Meredith was not Shepherd’s statutory employer
but was an “other party” subject to being sued by Shepherd in
this common law negligence action.
We disagree with the defendants’ argument that because the
Navy is the owner of the Dam Neck project, a different result is
required under Roberts v. City of Alexandria, 246 Va. 17, 431
S.E.2d 275 (1993). In Roberts, we held that a governmental
owner’s trade, business, or occupation is determined by
examining the duties that the owner is authorized or required
under law to perform. Id. at 19-20, 431 S.E.2d at 276-77.
We first observe that once Shepherd reached Meredith in the
ascending hierarchy of contractors, and established that he was
not performing work at the time of the accident that was part of
Meredith's trade, business, or occupation, Shepherd conclusively
proved that Meredith was not his statutory employer. See
Yancey, 252 Va. at 44, 471 S.E.2d at 474; Cinnamon, 238 Va. at
475 n.1, 384 S.E.2d at 619 n.1; Bassett Furniture Indus., Inc.
v. McReynolds, 216 Va. 897, 901-02, 224 S.E.2d 323, 326 (1976);
Sykes, 186 Va. at 122-23, 41 S.E.2d at 472. Thus, the owner of
the project, who was above Meredith in the ascending hierarchy,
likewise was not Shepherd's statutory employer. However, even
if we assume, without deciding, that the Navy's trade, business,
or occupation is relevant to an analysis of Meredith's status as
an "other party" under the Act, we reach the same result.
12
Under the United States Code, the Navy is authorized to
conduct various activities including the construction,
maintenance, and repair of buildings and structures. 10 U.S.C.
§ 5013(b)(12)(1994). However, under the Act, the mere delivery
of materials to a job site is not an act of construction
constituting the trade, business, or occupation of either a
general contractor or an owner of a construction project. See
Yancey, 252 Va. at 44, 471 S.E.2d at 474-75; Hipp, 211 Va. at
711, 180 S.E.2d at 501-02; Burroughs, 210 Va. at 100, 168 S.E.2d
at 108. Thus, although the Navy is authorized by law to engage
in construction activities, and may sometimes engage in the
delivery of materials to a job site, this fact does not alter
the relationship of a mere delivery person under the Act to the
general contractor of a construction project. Nor does that
fact make the mere delivery person the statutory employee of the
Navy for purposes of the Act. 1
The defendants next argue that the trial court erred in
allowing Burg to testify that the defendants violated certain
general provisions of OSHA when Burg was unable to identify a
violation of any specific OSHA standard relating to the
placement and erection of steel in a construction project.
1
The Navy’s authorization for “supplying” under 10 U.S.C.
§ 5013(b)(3) does not enlarge the scope of 10 U.S.C.
§ 5013(b)(12), which is a separate provision addressing a
different subject.
13
Thus, the defendants assert that Burg’s testimony improperly
implied that the defendants were negligent simply because an
accident had occurred on the construction site.
In response, Shepherd argues that Burg’s testimony was
properly admitted to allow the jury to determine whether and how
the defendants violated the provisions of OSHA. Shepherd
asserts that the jury was not required to accept Burg’s
testimony, which was offered to assist the jury in understanding
applicable safety standards. We disagree with Shepherd's
arguments.
We will set forth below the OSHA provisions that formed the
basis of Burg's testimony. OSHA's "general duty" clause, 29
U.S.C. § 654 (1994), provides in relevant part:
(a) Each employer –
(1) shall furnish to each of his employees
employment and a place of employment which are free
from recognized hazards that are causing or are
likely to cause death or serious physical harm to
his employees;
(2) shall comply with occupational safety and health
standards promulgated under this chapter.
The second OSHA provision at issue, 29 C.F.R. § 1926.16(2000), states in relevant part:
In no case shall the prime contractor be relieved of
overall responsibility for compliance with the
requirements of this part for all work to be
performed under the contract. . . . With respect to
subcontracted work, the prime contractor and any
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subcontractor or subcontractors shall be deemed to
have joint responsibility.
The third provision at issue, 29 C.F.R. § 1926.21(b)(2000),
states in relevant part:
(1) The employer should avail himself of the safety
and health training programs the Secretary provides.
(2) The employer shall instruct each employee in the
recognition and avoidance of unsafe conditions and
the regulations applicable to his work environment
to control or eliminate any hazards or other
exposure to illness or injury.
Based on the record before us, we conclude that the trial
court erred in allowing Burg to testify that the defendants
violated these general provisions of OSHA. Burg’s testimony
that the defendants violated the above provisions was based on
Meredith’s role as general contractor and its overall duty to
keep the workplace free from recognized hazards that could cause
death or serious physical harm to employees. Burg stated that,
under OSHA, a general contractor has "specific indelible [sic]
responsibilities to make sure that there is [a] safety program,
that there are safety rules, and that things don’t happen such
as happened in this case.” Burg testified that Meredith's
safety measures were inadequate "[b]ecause of the facts of the
accident." As stated above, he also explained that, in his
opinion, an OSHA violation is committed when an accident causing
serious injury occurs, and the accident was not caused by
employee misconduct or an “act of God.”
15
The jury was permitted to consider this testimony although
there was no evidence that the defendants violated any specific
duty imposed by OSHA relating to the construction activities
that gave rise to this accident. In fact, Shepherd conceded at
oral argument in this appeal that OSHA does not contain any such
specific provisions that were violated by the defendants. In
addition, the record lacks any evidence that the defendants were
required by OSHA to take the actions concerning the girt, and
the area beneath the girt, that Burg indicated would have
prevented the accident.
In the absence of any such specific requirements imposed by
OSHA, Burg was permitted to testify, in essence, that the
defendants violated OSHA because a serious accident occurred on
the job site, and their safety programs and inspections failed
to prevent the accident. Such testimony was analogous to
suggesting that the defendants were negligent merely because an
accident had occurred. Thus, this portion of Burg’s testimony
violated the longstanding principle that negligence cannot be
presumed from the mere happening of an accident. See Gossett v.
Jackson, 249 Va. 549, 552, 457 S.E.2d 97, 99 (1995); Parham v.
Albert, 244 Va. 73, 76, 418 S.E.2d 866, 868 (1992)(quoting
Lawrence v. Snyder, 229 Va. 139, 142, 326 S.E.2d 690, 692
(1985)); Sneed v. Sneed, 219 Va. 15, 17, 244 S.E.2d 754, 755
(1978). Accordingly, we conclude that the trial court erred in
16
permitting Burg to testify that the defendants violated the
above OSHA provisions. 2
For these reasons, we will affirm in part, and reverse in
part, the trial court’s judgment and remand the case for a new
trial consistent with the principles expressed in this opinion. 3
Affirmed in part,
reversed in part,
and remanded.
2
We need not determine whether Shepherd was within the
class of persons that OSHA was intended to protect. Even if
Shepherd was within this class of persons, his evidence failed
to show that the defendants violated any requirements imposed by
OSHA. See Halterman v. Radisson Hotel Corp., 259 Va. 171, 177,
523 S.E.2d 823, 826 (2000).
3
Based on the above holdings and our remand of this case for
a new trial, we do not address the defendants’ remaining
assignments of error.
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