THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Jean Holst, Individually, and as the Personal Representative of the estate of William Edward Holst, Jr., Appellant,
South Carolina State Port Authority, Respondent.
Appeal From Charleston County
J. Derham Cole, Circuit Court Judge
Unpublished Opinion No. 2011-UP-198
Heard November 3, 2010 – Filed May 3, 2011
Anne McGinness Kearse, Kevin R. Dean, and T. David Hoyle, all of Mount Pleasant, for Appellant.
Randell C. Stoney, Jr., of Charleston, for Respondent.
PER CURIAM: In this wrongful death action, Jean Holst, individually, and as the personal representative of the estate of William Edward Holst, Jr., appeals a jury verdict in favor of the South Carolina State Port Authority (SCSPA). We affirm.
The background facts of this case are set out in this court's opinion in Holst v. KCI Konecranes Int'l Corp., 390 S.C. 29, 699 S.E.2d 715 (Ct. App. 2010).
William Holst (Decedent) was a checker at the Wando Welch Terminal of the South Carolina State Ports Authority (SCSPA) in Charleston. As a checker, Decedent was responsible for identifying the containers needed for transport between the container yard and the ships. After identifying the correct containers for transport, Decedent would instruct the crane operators to move and load the containers in the proper sequence. On July 5, 2004, Decedent was working with Chad Swan, an employee of the SCSPA, who operated a KCI rubber-tired gantry crane (the crane). Swan was transferring containers from a container pad onto trucks for transport. [A container pad contains a truck lane and six stacks of containers, each with the potential of having four containers stacked on top of each other.]
Decedent instructed Swan to move all of the containers in stacks two, three, and four of the pad. After Swan moved all of the containers out of stack two, he picked up the four containers from stack one and lowered them into stack two. Decedent was standing in stack two and was crushed to death by the containers.
Swan testified he was unaware Decedent was in the second stack when he grounded the containers from stack one. He further testified he did not have visibility of the ground in stack two from the operator's cab of the crane. Swan stated that while Decedent did not instruct him to move the containers from stack one into stack two, it was protocol and a safety procedure to move the four containers out of stack one.
Id. at 33-34, 699 S.E.2d at 718.
Holst brought this wrongful death and negligence action against SCSPA. SCSPA denied any negligence on its part and asserted that even if it was negligent, Decedent's negligence was greater than its own. The case was tried before a jury to which the trial court submitted a special verdict form. The jury found Holst did not prove "by the greater weight of the evidence that the defendant, though its agent, servant, or employee was negligent, and that such negligence was a proximate cause of some loss or damage proven to have been sustained by the plaintiff and/or plaintiff's decedent." This appeal followed.
Holst argues the trial court erred in charging the jury on certain Occupational Safety and Health Administration (OSHA) regulations. We disagree.
"An appellate court will not reverse the trial court's decision regarding jury instructions unless the trial court committed an abuse of discretion." Cole v. Raut, 378 S.C. 398, 404, 663 S.E.2d 30, 33 (2008). "An abuse of discretion occurs when the trial court's ruling is based on an error of law or is not supported by the evidence." Id.
"A trial court must charge the current and correct law." Wells v. Halyard, 341 S.C. 234, 237, 533 S.E.2d 341, 343 (Ct. App. 2000). A trial court generally has a duty to give a requested instruction that correctly states the law applicable to the issues and evidence. Brown v. Smalls, 325 S.C. 547, 555, 481 S.E.2d 444, 448 (Ct. App. 1997). However, the court should confine the jury instructions to the issues made by the pleadings and supported by the evidence. Fairchild v. S.C. Dep't of Transp., 385 S.C. 344, 350-51, 683 S.E.2d 818, 822 (Ct. App. 2009).
In reviewing jury charges for an alleged error, the appellate court "must consider the court's jury charge as a whole in light of the evidence and issues presented at trial. If, as a whole, the charges are reasonably free from error, isolated portions which might be misleading do not constitute reversible error." Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 497, 514 S.E.2d 570, 575 (1999). "An alleged error is harmless if the appellate court determines beyond a reasonable doubt that the alleged error did not contribute to the verdict." Wells, 341 S.C. at 237, 533 S.E.2d at 343.
The trial court charged the jury:
In addition, there are particular OSHA regulations, that is the Department of Occupational Safety and Health Administration, Regulation [29 C.F.R. § 1917.71 (d)(2) (2010)] that specifically relate to marine terminal operations.
It requires that the employer shall direct employees to stay clear of the area beneath a suspended container. . . . [A]nother OSHA regulation [29 C.F.R. § 1917.13(h) (2010)] also relates to, specifically to, marine terminal operations, and that regulation requires that the employer shall require employees to stay clear of the area beneath overhead drafts or descending lifting gear.
The court also charged the jury at Holst's request:
And a regulation [29 C.F.R. 1910.179(n)(3)(vi) (2010)] provides that the employer shall require that the operator, being the operator of a crane, avoid carrying loads over people. And where it is shown that the employee has violated the requirements of a rule or regulation, that violation may constitute negligence on the part of that employee.
Holst does not challenge the wording of the charge. Instead, she asserts the trial court should not have charged the OSHA regulations requested by SCSPA to the jury. Holst argues the charge was inappropriate because SCSPA could not shift liability to Decedent's employer. SCSPA contends it was not attempting to shift liability to Decedent's employer. Instead, at trial it claimed Decedent was aware he should stay clear of the area beneath a suspended container. In its answer, SCSPA asserted Decedent's negligence exceeded its own negligence because, among other reasons "On information and belief [Decedent] failed to observe his employer's safety rules and procedures for stevedoring operation in which he was engaged at the time of his injuries." SCSPA never attempted to demonstrate Decedent's employer failed to comply with the OSHA regulations. It did not seek indemnity or contribution from the employer. Instead, SCSPA elicited testimony showing the checkers were aware of the safety regulations and provided other testimony concerning the regulations.
Stephen E. Connor read the OSHA regulations to the jury. John Michael Alvanos, a friend of Decedent who also worked as a checker, testified the checkers had a safety meeting before every shift and safety was on the agenda of every monthly meeting. He stated the checkers and clerks were trained and certified under OSHA. In addition, he claimed: "[Decedent] knew all the do's and don'ts. I can, I can verify for him one hundred percent he knew all the do's and don'ts on that terminal."
John Cleary, a clerk-checker like Decedent, testified that while checkers must be careful and aware of where the crane is, they must also go into the stacks to do their job. However, Cleary also stated that checkers should not go under the load of the crane while it is moving and experienced checkers know this.
Bill Harwell, Holst's expert witness, testified he was aware that according to OSHA regulations no one should ever go under a suspended load. He also stated someone of the Decedent's experience would know that.
Because the jury heard testimony that included the regulations themselves as well as evidence that checkers such as the Decedent were aware of the regulations, we find no prejudice from the trial court's charge.
Citing Fernanders v. Marks Construction. of South Carolina., Inc., 330 S.C. 470, 475, 499 S.E.2d 509, 511 (Ct. App. 1998), Holst argues: "The prejudice in instructions of irrelevant and inapplicable principles of law is manifest." This court in Fernanders was discussing the effect of charging the jury on the concept of joint and several liability, which it found to be comparable to charging the jury on the existence of liability insurance. Id. We find Fernanders does not negate well-established law requiring both error and prejudice. See Cole, 378 S.C. at 405, 663 S.E.2d at 33 (stating an erroneous jury instruction is not grounds for reversal unless the appellant can show prejudice from the erroneous instruction).
We find no reversible error in the trial court's charge. Accordingly, the verdict in favor of SCSPA is
HUFF, KONDUROS, and LOCKEMY, JJ. concur.
 Holst also argues on appeal that the charges were improper because the OSHA regulations do not create a private right of action. In addition, in her reply brief, Holst raises for the first time the issue that the trial court's charge of the OSHA regulations constituted commenting on the facts of the case. We find these issues are not properly before this court. Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review."); State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003) (holding a party may not argue one set of grounds below and alternate grounds on appeal); Continental Ins. Co. v. Shives, 328 S.C. 470 n.2, 474, 492 S.E.2d 808, 811 n.2 (Ct. App. 1997) ("An appellant may not use the reply brief to argue issues not raised in the initial brief.").