{ "id": 11242530, "name": "CRYSTAL GAIL WOLFE, Administratrix of the Estate of Richard Phillip Wolfe, Plaintiff v. WILMINGTON SHIPYARD, INCORPORATED and WILLIAM W. MURRELL, JR., Defendants", "name_abbreviation": "Wolfe v. Wilmington Shipyard, Inc.", "decision_date": "1999-12-07", "docket_number": "No. COA98-1516", "first_page": "661", "last_page": "671", "citations": [ { "type": "official", "cite": "135 N.C. App. 661" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "33 U.S.C. \u00a7 933", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "33 U.S.C. \u00a7 903", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "398 S.E.2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "600", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "327 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496145 ], "year": 1990, "pin_cites": [ { "page": "518", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0491-01" ] }, { "cite": "200 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561286, 8561224, 8561265, 8561238, 8561309 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0255-04", "/nc/284/0255-01", "/nc/284/0255-03", "/nc/284/0255-02", "/nc/284/0255-05" ] }, { "cite": "198 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551891 ], "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0207-01" ] }, { "cite": "368 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "848" }, { "parenthetical": "defendant not entitled to assign error to trial court's failure to provide limiting instruction for evidence admissible under Rule 703 when defendant objected to admission of evidence at trial but did not request limiting instruction" } ], "opinion_index": 0 }, { "cite": "322 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513686 ], "year": 1988, "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0406-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "169" }, { "page": "169", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "78-79" }, { "page": "78-79", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "412 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1992, "pin_cites": [ { "page": "111" }, { "page": "111" }, { "page": "220" }, { "page": "111" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 218", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522160 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "220" }, { "page": "220-21" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0218-01" ] }, { "cite": "69 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "235 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621739 ], "year": 1952, "pin_cites": [ { "page": "136-37" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0132-01" ] }, { "cite": "129 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "618", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "259 N.C. 16", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559112 ], "year": 1963, "pin_cites": [ { "page": "28", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0016-01" ] }, { "cite": "438 S.E.2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "735", "parenthetical": "quoting Weaver v. Bennett, 259 N.C. 16, 28, 129 S.E.2d 610, 618 (1963) (citations omitted)" }, { "page": "736" }, { "page": "736", "parenthetical": "citations omitted" }, { "page": "736" } ], "opinion_index": 0 }, { "cite": "335 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527709 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "387", "parenthetical": "quoting Weaver v. Bennett, 259 N.C. 16, 28, 129 S.E.2d 610, 618 (1963) (citations omitted)" }, { "page": "387-88" }, { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0379-01" ] }, { "cite": "379 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "680", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526592 ], "year": 1989, "pin_cites": [ { "page": "90", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0085-01" ] }, { "cite": "133 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "503", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "260 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575817 ], "year": 1963, "pin_cites": [ { "page": "653", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0647-01" ] }, { "cite": "414 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "388", "parenthetical": "citing Rosser v. Smith, 260 N.C. 647, 653, 133 S.E.2d 499, 503 (1963) (citations omitted)" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525069 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "703", "parenthetical": "citing Rosser v. Smith, 260 N.C. 647, 653, 133 S.E.2d 499, 503 (1963) (citations omitted)" }, { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0701-01" ] }, { "cite": "268 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "507", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "300 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564386 ], "year": 1980, "pin_cites": [ { "page": "673", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0669-01" ] }, { "cite": "495 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "365" }, { "page": "365" } ], "opinion_index": 0 }, { "cite": "404 U.S. 202", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171802 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "212-14" }, { "page": "391-92" } ], "opinion_index": 0, "case_paths": [ "/us/404/0202-01" ] }, { "cite": "46 L. Ed. 2d 644", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "423 U.S. 1055", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6489892, 6489673, 6489482, 6489805, 6489743, 6489971, 6489589, 6489403, 6490077 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/423/1055-07", "/us/423/1055-04", "/us/423/1055-02", "/us/423/1055-06", "/us/423/1055-05", "/us/423/1055-08", "/us/423/1055-03", "/us/423/1055-01", "/us/423/1055-09" ] }, { "cite": "520 F.2d 974", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1116431 ], "year": 1975, "pin_cites": [ { "page": "979" } ], "opinion_index": 0, "case_paths": [ "/f2d/520/0974-01" ] }, { "cite": "46 U.S.C. \u00a7 763", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1994, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "46 U.S.C. \u00a7 740", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 942, "char_count": 24871, "ocr_confidence": 0.726, "pagerank": { "raw": 1.2076764689302064e-07, "percentile": 0.5951547754328534 }, "sha256": "4032674324f3e07cb7a6130eb2b3273ce96a3283b2f52093b0bed83844f82b8e", "simhash": "1:23b14470a2352f86", "word_count": 4063 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and HUNTER concur." ], "parties": [ "CRYSTAL GAIL WOLFE, Administratrix of the Estate of Richard Phillip Wolfe, Plaintiff v. WILMINGTON SHIPYARD, INCORPORATED and WILLIAM W. MURRELL, JR., Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nWilmington 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\u2019 motion for setoff, and an order filed 4 June 1998 denying Defendants\u2019 Rule 50 motion to set aside the verdict and Rule 59 motion for new trial.\nPrior to trial, Defendants filed a motion to dismiss Plaintiff\u2019s claim on the ground it was subject to federal jurisdiction under the Admiralty Extension Act, 46 U.S.C. \u00a7 740 (1994), and was therefore barred by a three-year statute of limitations, 46 U.S.C. \u00a7 763(a) (1994). The trial court denied Defendant\u2019s motion.\nThe 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.\nAround May of 1992, Wolfe was assigned to repair the rudders of the Cathy G, a tugboat docked at Hanover\u2019s 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 re-attaching 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.\nGiles 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 \u201ctoppled over,\u201d 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.\nGiles stated regarding his job duties that when he worked with Wolfe, Wolfe would \u201cwalk [him] through things\u201d and then the two would perform the job accordingly. He stated Wolfe was \u201cmore or less [his] boss man,\u201d 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 \u201cit was [his] call,\u201d 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.\nPlaintiffs 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 \u201cdangerous position,\u201d and should have been \u201csafe\u201d where he was standing.\nDonald L. Chisler, an expert in shipyard safety, testified the role of the rigger is to \u201cattach the load to the hook of the crane and to help ensure personnel are free of the lift in the swing radius of the crane.\u201d He also stated a safe distance from a 2,200 pound rudder that had been hoisted twelve feet into the air would be between twenty and twenty-five feet.\nMurrell testified there was no reason for Wolfe to be standing only seven feet from the rudder as it was being hoisted, and that he could have been standing fifty feet away or could have been standing on the Cathy G itself.\nFollowing the 9 April 1992 accident, the federal Occupational Safety and Health Administration (OSHA) conducted an investigation of Wilmington Shipyard\u2019s work site, and Wilmington Shipyard was subsequently cited for sixty OSHA violations, including 39 \u201cserious\u201d violations.\nRaymond Powell Boylston, Jr. (Boylston), a safety consultant and expert in workplace safety, testified regarding OSHA safety and health standards for the shipyard industry and the OSHA violations committed by Wilmington Shipyard. Boylston testified, based on a report prepared by an OSHA investigator who had investigated Wilmington Shipyard, that Wilmington Shipyard\u2019s training violated OSHA standards. Boylston stated the sling used by Wolfe and Giles did not have the proper number of clamps on it, which demonstrated Wolfe and Giles had not been properly trained to use the sling. He stated Wolfe was performing his job on the date of the accident in the same way he had in the past and, while he did \u201cput him[self] in harm\u2019s way, . . . that\u2019s the normal way the job was set up, and that\u2019s what he was supposed to do.\u201d\nBoylston testified Wilmington Shipyard had a safety handbook which referred to a safety committee. The safety committee was to coordinate safety activities and inspections and, in some cases, perform inspections. Wilmington Shipyard informed the Navy in a 7 September 1984 letter that it held monthly safety meetings. James Sykes, a crane operator supervisor at Wilmington Shipyard, however, testified he did not recall any safety committee meetings taking place and stated there were no safety meetings for general employees. Richard Miles, the \u201cnumber three man\u201d at Wilmington Shipyard, similarly testified he did not recall attending any safety committee meetings.\nBoylston stated that according to shipyard safety standards, the management of a company, including the president, is responsible for implementing a shipyard safety and health program. He also testified that Murrell stated in his deposition he was \u201cnot involved in safety\u201d at Wilmington Shipyard.\nBoylston based his testimony, in part, on the depositions of James Sykes, Richard Miles, and Gerald Murrell, and summaries of statements from those depositions were admitted into evidence over Defendants\u2019 objection. Defendants did not, however, request a limiting instruction.\nAt the close of evidence, the trial court denied Defendants\u2019 motion for a directed verdict finding Plaintiff was contributorily negligent and Murrell was not personally negligent, and granted Plaintiff\u2019s motion for a directed verdict finding Giles was not a borrowed servant of Hanover.\nThe trial court submitted to the jury, in pertinent part, the issues of whether Wolfe\u2019s death was \u201ccaused by the negligence of . . . Wilmington Shipyard,\u201d whether Wolfe\u2019s death was \u201ccaused by the negligence of . . . Murrell,\u201d and whether Wolfe was contributorily negligent.\nThe jury found Wolfe\u2019s death was caused by the negligence of Wilmington Shipyard and Murrell, and that Wolfe had not, by his own negligence, contributed to his death.\nThe issues are whether: (I) Plaintiffs claim was subject to admiralty jurisdiction; (II) Plaintiff\u2019s claim was barred because Wolfe was contributorily negligent as a matter of law; (III) Defendants presented sufficient evidence to submit to the jury the issue of whether Giles was a borrowed servant of Hanover; (IV) deposition summaries upon which Boylston based his opinion were improperly admitted as substantive evidence under Rule 703; and (V) Plaintiff presented sufficient evidence to submit to the jury the issue of whether Murrell was individually liable.\nI\nDefendants argue Plaintiffs claim was subject to admiralty jurisdiction and therefore barred by the federal statute of limitations. We disagree.\nThe Admiralty Extension Act (the Act) extends federal admiralty jurisdiction to \u201call cases of damage or injury... caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.\u201d 46 U.S.C. \u00a7 740. The Act applies when \u201ca ship or its appurtenances . . . proximately cause [s] an injury on shore.\u201d Pryor v. American President Lines, 520 F.2d 974, 979 (4th Cir. 1975), cert. denied, 423 U.S. 1055, 46 L. Ed. 2d 644 (1976).\nIn this case, Wolfe was injured when the sling used to attach the rudder to the crane broke, causing the rudder to fall to the pier. The sling was not part of the Cathy G\u2019s gear, and was not attached to the Cathy G when it broke. Further, the crane used to hoist the rudder was located on the pier and not on the Cathy G, and Wolfe was standing on the pier when injured. Because neither the Cathy G nor any of its appurtenances caused Wolfe\u2019s injury, this case is not subject to admiralty jurisdiction under the Act. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 212-14, 30 L. Ed. 2d 383, 391-92 (1971) (claim not subject to admiralty jurisdiction under the Act when plaintiff was injured by a forklift used to load the ship, and the forklift was not \u201cpart of the ship\u2019s usual gear or . . . stored on board, . . . was in no way attached to the ship, . . . was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gangplank\u201d).\nII\nDefendants argue Plaintiff\u2019s claim was barred as a matter of law by Wolfe\u2019s contributory negligence. We disagree.\n\u201c[A] plaintiffs right to recover in a personal injury action is barred upon a finding of contributory negligence,\u201d Cobo v. Raba, 347, N.C. 541, 545, 495 S.E.2d 362, 365 (1998), and a plaintiff is contributorily negligent when he fails to use due care to protect himself from risk of injury if the risk would have been apparent to \u201c \u2018a prudent person exercising ordinary care for his own safety,\u2019 \u201d id. at 546, 495 S.E.2d at 365 (quoting Smith v. Fiber Controls Corp., 300 N.C. 669, 673, 268 S.E.2d 504, 507 (1980) (citations omitted)); Dunbar v. City of Lumberton, 105 N.C. App. 701, 703, 414 S.E.2d 387, 388 (1992) (citing Rosser v. Smith, 260 N.C. 647, 653, 133 S.E.2d 499, 503 (1963) (citations omitted)). Further, a plaintiff is contributorily negligent as a matter of law, thereby entitling a defendant to a directed verdict, when \u201cthe evidence taken in the light most favorable to [the] plaintiff establishes [his] negligence so clearly that no other reasonable inferences or conclusions may be drawn therefrom.\u201d Dunbar, 105 N.C. App. at 703, 414 S.E.2d at 388 (citing Hicks v. Food Lion, Inc., 94 N.C. App. 85, 90, 379 S.E.2d 677, 680 (1989) (citations omitted)).\nIn this case, Defendants argue Wolfe was contributorily negligent because he stood dangerously close to the sling. Although the record contains evidence a safe distance would have been twenty-to-twenty-five feet from the sling, and Wolfe was standing only seven feet from the sling, there is also evidence Wolfe did not know and had no reason to know that he was standing too close to the sling. The evidence shows, when viewed in the light most favorable to Plaintiff, Wolfe and Giles never received any training regarding sling safety, including the proper place to stand when the sling was in use. Giles believed Wolfe never placed himself in a dangerous position on the day of the accident, and he testified Wolfe was standing in a safe place when the sling broke. Further, Wolfe used the only available route to reach the Cathy G, and the parties had previously used the same lift to move the same rudder without incident.\nBecause a jury could reasonably find, based on Plaintiffs evidence, that Wolfe exercised due care for his safety, and the risk of danger would not be apparent to a reasonably prudent person, the issue of contributory negligence was properly submitted to the jury.\nIll\nDefendants argue the trial court erred by finding as a matter of law Giles was not a borrowed servant of Hanover. We disagree.\nA servant furnished by its employer to another party becomes the borrowed servant of that party when it has the right to control the servant regarding \u201c \u2018not only the work to be done but also . . . the manner of performing it.\u2019 \u201d Harris v. Miller, 335 N.C. 379, 387, 438 S.E.2d 731, 735 (1994) (quoting Weaver v. Bennett, 259 N.C. 16, 28, 129 S.E.2d 610, 618 (1963) (citations omitted)); see also Hodge v. McGuire and Fingleton v. McGuire, 235 N.C. 132, 136-37, 69 S.E.2d 227, 230 (1952) (\u201c \u2018servant of one employer does not become the servant of another for whom the work is performed merely because the latter points out to the servant the work to be done,... supervises the performance thereof, ... or gives him directions as to the details of the work and the manner of doing it\u2019 \u201d (quoting 57 C.J.S. Master and Servant \u00a7 566, at 287-88 (1948))). The most significant factor to consider when making this determination is whether the party actually exercises control over the servant, but other factors include:\nwhether the lent servant is a specialist, which employer supplies the instrumentalities used to perform the work, the nature of those instrumentalities, the length of employment, the course of dealing between the parties, [and] whether the temporary employer has the skill or knowledge to control the manner in which the work is performed ....\nHarris, 335 N.C. at 387-88, 438 S.E.2d at 736. Further, \u201c[a]bsent evidence to the contrary, the original employer is presumed to retain the right of control.\u201d Id. at 338, 438 S.E.2d at 736 (citations omitted).\nIn this case, when Wolfe needed assistance with a repair job he would ask Gerald Murrell, an employee of Wilmington Shipyard, to provide someone. Giles would then be instructed by his supervisor at Wilmington Shipyard to assist Wolfe. Although Giles referred to Wolfe as \u201cboss man,\u201d Giles retained control over the operation of the crane while working with Wolfe. Wolfe would tell Giles the general plan for the work to be done, but Giles would decide whether a particular activity was safe and, if he had safety concerns, would decline to perform the activity. Giles was on the job to use his skill and knowledge as a crane operator, and was at all times paid by Wilmington Shipyard.\nA moving party is entitled to a directed verdict against the party bearing the burden of proof when, viewing the evidence in the light most favorable to the party bearing the burden of proof, there is no substantial evidence to support that party\u2019s claim. Cobb v. Reiter, 105 N.C. App. 218, 220, 412 S.E.2d 110, 111 (1992). \u201c \u2018[Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d Id. (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). Because the record contains no evidence Wolfe exercised actual control over the manner of Giles\u2019 performance, and does not contain substantial evidence that Wolfe had the right to exercise this control, Wilmington Shipyard is presumed to have retained the right to control Giles and Plaintiff was entitled to a directed verdict finding Giles was not a borrowed servant of Hanover.\nIV\nDefendants argue deposition summaries admitted into evidence under Rule 703 were improperly admitted as substantive evidence. We disagree.\nAn expert may rely upon facts or data not otherwise admissible into evidence if they are the type \u201creasonably relied upon by experts in the particular field in forming opinions or inferences.\u201d N.C.G.S. \u00a7 8C, Rule 703 (1992). These facts or data, however, are admissible for the limited purpose of showing the basis for the expert\u2019s opinion, and not as substantive evidence. State v. Jones, 322 N.C. 406, 414, 368 S.E.2d 844, 848 (1988).\nIn this case, Boylston testified he relied upon the depositions of James Sykes, Richard Miles, and Gerald Murrell when forming his expert opinion, and Plaintiff sought to admit into evidence, over the objection of Defendants, summaries of those depositions. Although these summaries were not admissible as substantive evidence, they were admissible under Rule 703 for the limited purpose of demonstrating to the jury facts Boylston relied upon when forming his opinion. Defendants\u2019 objection was therefore properly overruled. Further, as Defendants did not request a limiting instruction at trial, they cannot assign error to the admission of these summaries as substantive evidence. Id. (defendant not entitled to assign error to trial court\u2019s failure to provide limiting instruction for evidence admissible under Rule 703 when defendant objected to admission of evidence at trial but did not request limiting instruction).\nV\nDefendants argue the issue of Murrell\u2019s individual liability should not have been submitted to the jury because the record contains no evidence of Murrell\u2019s personal liability.\nWhile as a general rule an officer of a corporation is not liable for the torts of the corporation \u201c \u2018merely by virtue of his office,\u2019 \u201d Records v. Tape Corp., 19 N.C. App. 207, 215, 198 S.E.2d 452, 457 (quoting 19 C.J.S. Corporations \u00a7 845, at 271 (1940)), cert. denied, 284 N.C. 255, 200 S.E.2d 653 (1973), an officer of a corporation \u201ccan be held personally liable for torts in which he actively participates[,]\u201d even though \u201ccommitted when acting officially,\u201d Wilson v. McLeod Oil Co., 327 N.C. 491, 518, 398 S.E.2d 586, 600 (1990) (citation omitted).\nIn this case, Boylston testified that in the shipyard industry, the management of a company is responsible for implementing a shipyard safety and health program and demonstrating a commitment to safety. Boylston further stated the management includes the president of the company. Plaintiff did not present evidence, however, that in this case Murrell was personally responsible for implementing or monitoring the company\u2019s safety program. Further, Murrell stated in his deposition he was not personally involved in any safety aspect of the business at Wilmington Shipyard.\nA defendant is entitled to a directed verdict when, viewing the evidence in the light most favorable to the plaintiff, there is no substantial evidence to support the plaintiffs claim. Cobb, 105 N.C. App. at 220-21, 412 S.E.2d at 111. \u201c \u2018Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d Id. at 220, 412 S.E.2d at 111 (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citations omitted)). Because Boylston\u2019s testimony regarding general safety standards in the shipyard industry are not sufficient to support the conclusion that Murrell was personally responsible for overseeing and monitoring safety at Wilmington Shipyard, Murrell was entitled to a directed verdict on the issue of his personal liability. Accordingly, the trial court erred in denying this motion.\nDefendants also assign error to the trial court\u2019s instruction to the jury that violation of an OSHA regulation is negligence per se, the admission of OSHA citations into evidence, and expert testimony regarding Wilmington Shipyard\u2019s violation of OSHA regulations; however, we do not address these arguments because they were not properly raised in the trial court. N.C.R. App. R 10(b)(1) (appellants must make timely objection at trial to preserve question for appellate review); N.C.R. App. P. 10(b)(2) (appellants must raise objection to jury charge at trial).\nIn summary, there is no error in the judgment for Plaintiff against Wilmington Shipyard and the judgment against Murrell is reversed.\nReversed in part.\nJudges WALKER and HUNTER concur.\n. In this case, Defendants contend Plaintiffs claim was barred by the three-year statute of limitations for claims brought under the Admiralty Extension Act, 46 U.S.C. \u00a7 763(a), and, although Plaintiffs claim would be tolled under state law, N.C.R. Civ. P. 41(a), state tolling provisions do not apply to claims brought under this Act.\nPlaintiff, however, argues that even if its claim is subject to federal admiralty jurisdiction, state tolling provisions nevertheless apply and Plaintiffs claim was therefore timely filed.\nBecause we hold Plaintiffs claim is not subject to admiralty jurisdiction, we need not address the issue of whether state tolling provisions apply to claims brought under this Act.\n. The issue of whether Giles was a borrowed servant of Hanover arises because the Longshore and Harbor Workers\u2019 Compensation Act, U.S.C. tit. 33, ch. 18 (1994), which provides compensation for employees injured \u201cupon the navigable waters of the United States,\u201d 33 U.S.C. \u00a7 903(a), provides the exclusive remedy for an employee injured by a co-employee when the injury is subject to the jurisdiction of this statute, 33 U.S.C. \u00a7 933(1).\n. The ownership of the instrumentality is one factor to consider when determining whether the operator of the instrumentality is a borrowed servant. See Harris, 335 N.C. at 388, 438 S.E.2d at 736. Defendants contend Hanover owned the crane used by Giles to assist Wolfe, but the record contains conflicting evidence regarding ownership of the crane. Even assuming Hanover did own the crane; however, ownership of the crane alone is insufficient evidence in this case to show Wolfe exercised control or had the right to exercise control over Giles\u2019 manner of work.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Ward and Smith,, P.A., by John M. Martin and Ryal W. Tayloe, for plaintiff-appellee.", "Smith Helms Mulliss & Moore, L.L.P., by James G. Exum, Jr., Paul K. Sun, Jr., and Gary R. Govert; and Marshall, Williams & Gorham, L.L.P., by Ronald H. Woodruff, for defendant-appellants." ], "corrections": "", "head_matter": "CRYSTAL GAIL WOLFE, Administratrix of the Estate of Richard Phillip Wolfe, Plaintiff v. WILMINGTON SHIPYARD, INCORPORATED and WILLIAM W. MURRELL, JR., Defendants\nNo. COA98-1516\n(Filed 7 December 1999)\n1. Jurisdiction\u2014 admiralty \u2014 injury on pier\nAn action arising from an injury and death at a shipyard was not subject to admiralty jurisdiction and therefore barred by the federal statute of limitations where the injury occurred while the victim was attaching a repaired rudder to a tugboat; the sling used to attach the 2,200-pound rudder to a crane broke; the rudder fell to the pier, bounced, and briefly trapped the decedent, who then fell from the pier into the water; the sling was not part of the tugboat\u2019s gear and was not attached to the tugboat when it broke; the crane was on the pier and not the tug; and the decedent was standing on the pier when injured. Neither the tug nor its appurtenances caused the injury.\n2. Negligence\u2014 contributory \u2014 shipyard worker\nA negligence action arising from the injury and death of a shipyard worker was not barred as a matter of law by contributory negligence where defendant argued that the decedent was dangerously close to a sling being used to move a rudder, but there was evidence that he had no reason to know that he was too close and a jury could reasonably find that the risk of danger would not be apparent to a reasonably prudent person and that decedent exercised due care for his safety.\n3. Employer and Employee\u2014 borrowed servant \u2014 shipyard worker\nThe trial court did not err in a negligence action arising from an injury and death in a shipyard by granting plaintiff\u2019s motion for a directed verdict on whether a crane operator (Giles) was a borrowed servant of Hanover Towing (decedent\u2019s employer). Defendant Wilmington Shipyard is presumed to have retained the right to control Giles because the record contains no evidence that decedent (Wolfe) exercised actual control over the manner of Giles\u2019 performance and does not contain substantial evidence that Wolfe had the right to exercise this control.\n4. Evidence\u2014 deposition summaries \u2014 admitted as substantive evidence \u2014 limiting instruction not requested\nThere was no reversible error in a negligence action arising from a shipyard accident where the trial court admitted deposition summaries as substantive evidence. A safety expert testified that he relied upon the depositions in forming his opinion and the summaries were admissible under Rule 703 for the limited purpose of demonstrating the facts upon which the expert relied. Defendants could not assign error to the admission of the summaries as substantive evidence because they did not request a limiting instruction at trial.\n5. Negligence\u2014 individual liability \u2014 injury in shipyard \u2014 shipyard president\nDefendant Murrell was entitled to a directed verdict on the issue of personal liability in an action arising from an injury and death at a shipyard at which he was president where expert testimony that management is responsible for implementing shipyard safety in the shipyard industry was not sufficient to support the conclusion that Murrell was personally responsible for overseeing and monitoring safety at Wilmington Shipyard.\nAppeal 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.\nWard and Smith,, P.A., by John M. Martin and Ryal W. Tayloe, for plaintiff-appellee.\nSmith Helms Mulliss & Moore, L.L.P., by James G. Exum, Jr., Paul K. Sun, Jr., and Gary R. Govert; and Marshall, Williams & Gorham, L.L.P., by Ronald H. Woodruff, for defendant-appellants." }, "file_name": "0661-01", "first_page_order": 695, "last_page_order": 705 }