Bosley v. Shepherd

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

3
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.

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 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

11
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.

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 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.

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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.”

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 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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