Marzec-Gerrior v. D.C.P. Industries, Inc.

674 A.2d 1248, 164 Vt. 569, 1995 Vt. LEXIS 141

• Court: Supreme Court of Vermont
• Decided: December 15, 1995
• Docket: 94-369
• Status: Published

Opinions

Allen, C.J.

Plaintiff Lawrence Marzec-Gerrior was injured when a concrete slab dropped from a crane. He instituted this action for damages against the defendant crane operator, which, in turn, brought a third-party complaint against plaintiff’s employer. Plaintiff Mary Marzec-Gerrior joined to recover for the loss of consortium of her husband. Plaintiffs appeal from the denial of their motion for judgment notwithstanding the verdict following an adverse jury verdict. We affirm.

The employer hired defendant and his crane to lift prestressed concrete slabs from a storage area in the employer’s yard onto a flat-bed trailer for transportation to a location in New Hampshire. The slabs were connected to slings hung from the crane’s hook by “rigging” — two bolts inserted into receptacles embedded in each end of the slab. The bolts were inserted by employees of plaintiff’s employer, and the accident occurred because one of the bolts had been screwed down only one or two turns rather than all the way into the insert. Plaintiff was injured while guiding the slab onto the flat-bed trailer.

On appeal, plaintiffs assert that the trial court should have directed a verdict for them, that the trial court erred in its charge to the jury, and that the eourt erred in denying a motion to amend their complaint.

The motion for a directed verdict was based on a violation of a VOSHA regulation, which states:

Moving the load (i) The employer shall assure that:

(b) The load is well secured and properly balanced in the sling or lifting device before it is lifted more than a few inches.

29 C.F.R. § 1910.180(h)(3)(i)(b).

Plaintiffs contend that the fall of the slab is proof of the violation of the VOSHA regulation and that the violation created a presumption of negligence which was unrebutted, thereby warranting a directed verdict. As we noted in Ball v. Melsur Corp., 161 Vt. 35, 633 A.2d 705 (1993), the violation of an OSHA/VOSHA regulation is properly admissible as evidence of a standard of care. Id. at 43, 633 A.2d at 712. Plaintiffs’ experts opined that the regulation required the crane operator to be certain that the bolt was screwed in all the way, and if in doubt, to get out of his cab and “go over and look.” Defendant’s evidence was that plaintiff’s employer was responsible “from the hook down” and produced expert testimony that defendant’s method for testing the reliability of the attachment of the crane to the slab met applicable standards. In reviewing a grant or denial of a motion for a directed verdict, this Court must view the evidence in the light most favorable to the nonmoving party. Seewaldt v. Mount Snow, Ltd., 150 Vt. 238, 239, 552 A.2d 1201, 1201 (1988). Any presumption created by the evidence of the violation of the regulation was sharply rebutted by defendant’s evidence, and the trial court did not err in denying plaintiffs’ motion.

Plaintiffs also argued that the court erred in its instructions to the jury. We do not reach this issue as there was no objection made to the charge after its delivery. Winey v. William E. Dailey, Inc., 161 Vt. 129, 138, 636 A.2d 744, 750 (1993) (post-charge objection must be made to preserve issue for appeal).

Plaintiffs’ third argument is that the trial court erred in refusing to allow them to amend their complaint to reinstate the claim alleging strict liability Plaintiffs fail to demonstrate how they were prejudiced by the denial, and in an absence of any such showing, any error will be presumed to be harmless. Green Mountain Marble Co. v. State Highway Bd., 130 Vt. 455, 468, 296 A.2d 198, 206 (1972). A reinstatement of the strict liability claim would not have entitled them to a grant of their motion for a directed verdict nor would it have cured the failure to object to the jury instruction.

In view of our disposition, it is unnecessary to consider defendant’s request to reinstate the third-party claim.

Affirmed.