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Wolfe v. Shipyard12/7/1999
Filed: 7 December 1999
Appeal by defendants from judgment filed 4 June 1998 and from orders filed 4 June 1998 by Judge Carl L. Tilghman in New Hanover County Superior Court. Heard in the Court of Appeals 5 October 1999.
Wilmington Shipyard, Incorporated (Wilmington Shipyard) and William W. Murrell, Jr. (Murrell) (collectively, Defendants) appeal a judgment filed 4 June 1998 in favor of Crystal Gail Wolfe (Plaintiff), Administratrix of the Estate of Richard Phillip Wolfe, an order filed 4 June 1998 denying, in part, Defendants' motion for setoff, and an order filed 4 June 1998 denying Defendants' Rule 50 motion to set aside the verdict and Rule 59 motion for new trial.
Prior to trial, Defendants filed a motion to dismiss Plaintiff's claim on the ground it was subject to federal jurisdiction under the Admiralty Extension Act, 46 U.S.C. § 740 (1994), and was therefore barred by a three-year statute of limitations, 46 U.S.C. § 763(a) (1994). The trial court denied Defendant's motion.
The case then went to trial, and the evidence showed that in 1992, Wilmington Shipyard, a ship repair business, shared a location, office space, and staff with Hanover Towing, Inc. (Hanover), a marine towing and barge company. Murrell was president of both companies. Richard Phillip Wolfe (Wolfe) worked as a Port Engineer for Hanover, where he supervised all repair work. When Wolfe needed assistance with a repair job , he would sometimes ask Gerald Murrell, an employee at Wilmington Shipyard, to provide an assistant from Wilmington Shipyard.
Around May of 1992, Wolfe was assigned to repair the rudders of the Cathy G, a tugboat docked at Hanover's pier. On 9 April 1992, after the rudder had been repaired, William Edward Giles (Giles), an employee of Wilmington Shipyard, was asked by his supervisor to assist Wolfe in reattaching the rudder to the Cathy G. Giles worked as a welder and crane operator, and his role on that day was to operate the crane that was used to lift the rudder from off the pier. At the same time, Wolfe was to act as the rigger, attaching a wire rope sling (the sling) to the rudder. The rudder weighed 2,200 pounds.
Giles testified Wolfe hooked the sling to the rudder and Giles used the crane to lift the rudder about six-to-eight feet off the pier: the same sling was used previously to remove the rudder from the Cathy G. Approximately thirty seconds later, while Wolfe was standing about seven feet away from Giles, the sling broke and the rudder fell to the pier. The rudder bounced onto the pier and "toppled over," trapping Wolfe between a 55-gallon drum and the rudder. Wolfe then fell into the water and, after being pulled from the water by a co-employee, died at the scene of the accident.
Giles stated regarding his job duties that when he worked with Wolfe, Wolfe would "walk through things" and then the two would perform the job accordingly. He stated Wolfe was "more or less boss man," but Giles was on the job to use his skill and knowledge as a crane operator. Giles also stated with regard to the operation of the crane that "it was call," and if he thought a procedure was unsafe he would not perform the procedure. Giles testified he was at all times working for and paid by Wilmington Shipyard.
Plaintiff's evidence tended to show Giles and Wolfe did not receive safety training for inspecting and using the sling, and a proper inspection would have revealed the sling was damaged. Giles testified that on the day of the accident Wolfe used the only available path to the Cathy G, never walked under the rudder, did not put himself in a "dangerous position," and should have been "safe" where he was standing.
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