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ROBERT BOSLEY, ET AL. v. OPINION BY JUSTICE BARBARA MILANO KEENAN November 2, 2001 MICHAEL A. SHEPHERD, et al. Record No. 002735

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 coworker, 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

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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 The The

attached to the vertical steel columns of the structure.

girt was about 29 feet long and weighed about 1700 pounds. 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). (1994). 29 U.S.C.

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