Mathis v. United Engineers & Constructors, Inc.

• Decision Date: 10 February 1989
• Citation: 381 Pa.Super. 466,554 A.2d 96
• Parties: John MATHIS and Elaine Mathis, h/w, Appellees, v. UNITED ENGINEERS & CONSTRUCTORS, INC., Appellee. Appeal of PHILADELPHIA ELECTRIC COMPANY. John MATHIS and Elaine Mathis, h/w, Appellees, v. UNITED ENGINEERS AND CONSTRUCTORS, INC., Appellant. John MATHIS and Elaine Mathis, h/w, Appellees, v. PHILADELPHIA ELECTRIC COMPANY, Appellant. John MATHIS and Elaine Mathis, h/w, Appellees, v. PHILADELPHIA ELECTRIC COMPANY, Appellee. Appeal of UNITED ENGINEERS AND CONSTRUCTORS, INC.
• Court: Pennsylvania Superior Court

Page 96

554 A.2d 96

381 Pa.Super. 466

John MATHIS and Elaine Mathis, h/w, Appellees, v. UNITED ENGINEERS & CONSTRUCTORS, INC., Appellee.

Appeal of PHILADELPHIA ELECTRIC COMPANY.

John MATHIS and Elaine Mathis, h/w, Appellees, v. UNITED ENGINEERS AND CONSTRUCTORS, INC., Appellant.

John MATHIS and Elaine Mathis, h/w, Appellees, v. PHILADELPHIA ELECTRIC COMPANY, Appellant.

John MATHIS and Elaine Mathis, h/w, Appellees, v. PHILADELPHIA ELECTRIC COMPANY, Appellee.

Appeal of UNITED ENGINEERS AND CONSTRUCTORS, INC.

Superior Court of Pennsylvania.

Argued May 12, 1988.

Filed Feb. 10, 1989.

James D. Coleman, Philadelphia, for Philadelphia Elec. Co., appellant (at Nos. 3496 and 3497).

Harry A. Short, Jr., Philadelphia, for United Engineers, appellant (at Nos. 75 and 76).

Joseph Lurie, Philadelphia, for Mathis, appellees.

Before BECK, TAMILIA and JOHNSON, JJ.

BECK, Judge:

In this case, we consider consolidated appeals by the Philadelphia Electric Company (PECO) and by United Engineers and Constructors, Inc. (UE & C) from a judgment entered following a jury verdict in favor of plaintiff-appellees John and Elaine Mathis.

John Mathis is a laborer who was assigned by his employer, Henkels and McCoy, Inc., to perform maintenance work at the Eddystone Plant, an electric generating station which is owned and operated by PECO. On May 5, 1981, while John Mathis was dismantling a scaffold which had been erected on a grated catwalk, a portion of the catwalk collapsed beneath his feet. Mathis fell twenty-five feet and sustained serious injuries. He and his wife Elaine initially filed suit against PECO for negligently maintaining the catwalk. The Mathises later brought a separate suit against UE & C, the manufacturer of the catwalk, based on the theory that UE & C had designed and installed the catwalk in a negligent manner. The two suits were consolidated and were tried before a jury in the Court of Common Pleas of Philadelphia County. On May 29, 1986, the jury returned a verdict finding PECO 70% negligent and finding UE & C 30% negligent. The jury awarded John Mathis $161,000 for pain and suffering, loss of earnings, and loss of future earning capacity, and awarded Elaine Mathis $17,000 for loss of consortium.

Both defendants filed timely post-trial motions which were denied. Plaintiffs moved for the award of delay damages pursuant to Pennsylvania Rule of Civil Procedure 238. On November 19, 1982, the court issued an order entering judgment in favor of the Mathises and assessing total delay damages of over $67,000. From this final order, UE & C and PECO filed timely appeals.

Counsel for UE & C contends that UE & C is entitled to judgment n.o.v. on the grounds that the company did not breach any duty to the plaintiffs and that UE & C's actions were not the proximate cause of John Mathis' injury. In the alternative, counsel for UE & C also argues that the trial court erred: 1) by failing to mold the verdict by ordering PECO to indemnify UE & C; 2) by failing to strike the testimony of plaintiffs' expert witness on catwalk design; 3) by charging the jury in accordance with the principles of causation set forth in section 447 of the Restatement (Second) of Torts; and 4) by assessing delay damages. After careful consideration, we grant judgment n.o.v. for UE & C. Accordingly, we need not consider UE & C's remaining allegations of error.

Counsel for PECO contends that the electric company is immune from suit under the provisions of the Pennsylvania Workmen's Compensation Act. In the alternative, counsel for PECO argues that the trial court erred: 1) by refusing to submit to the jury the issue of whether UE & C is liable to indemnify PECO; 2) by allowing the jury to consider the testimony of plaintiff's expert witness on damages for loss of earning capacity; and 3) by assessing delay damages. We find that PECO is not immune from suit and is not entitled to either indemnity from UE & C or a new trial. PECO is therefore liable for the full amount of the verdict awarded by the jury. However, we must remand for a recalculation of delay damages.

I. UE & C's Appeal

We first consider UE & C's claim that the evidence was insufficient to establish that UE & C was negligent. Since UE & C appeals from the denial of a motion for judgment n.o.v., we must view all of the evidence, together with all of the reasonable inferences therefrom, in the light most favorable to appellees as verdict winners. Tua v. Brentwood Motor Coach Company, 371 Pa. 570, 572, 92 A.2d 209, 210 (1952); Olson v. Dietz, 347 Pa.Super. 1, 6-8, 500 A.2d 125, 129 (1985). We find that UE & C cannot be held legally responsible for the accident at the Eddystone Plant.

The facts relating to the collapse of the catwalk are as follows. In 1972, PECO entered into a contract with UE & C for the construction of waste water facilities on the premises of the Eddystone Plant. Pursuant to the contract, UE & C was required to design, construct and install a catwalk which would encircle a waste water holding tank at an elevation of twenty-five feet. Both PECO and UE & C were aware that the catwalk would block an access door on the side of the tank which needed to be opened once every few years so that the tank could be cleaned. In order to address this problem, UE & C selected a structural design which would enable PECO to dismantle the portion of the catwalk closest to the access door. UE & C erected a catwalk which consisted of metal grates that were tackwelded to underlying structural supports. This design permitted PECO to gain entrance to the tank by burning through the tackwelds and lifting off the metal grates. PECO approved the design, and never notified UE & C of any problem with how the catwalk was constructed.

In 1978, PECO ordered its employees to remove three grates immediately adjacent to the side of the tank and raise the access door. A welder, with the assistance of a machinist, riggers, and helpers, used an oxygen acetylene torch to melt all of the tackwelds on the grating. William MacGregor, the former head of PECO's maintenance department, testified at trial that the workers were never instructed to reweld the grates to the supports after the tank had been serviced. MacGregor said that he had simply assumed that the workers would properly reassemble the catwalk.

In 1980, the same process was repeated. PECO employees were directed to open the access door, but the maintenance department did not instruct anyone to restore the welds. The maintenance department also failed to conduct any subsequent inspection to ensure that the structure was in good condition.

On May 5, 1981, the three grates adjacent to the side of the tank slipped out from beneath John Mathis causing him to fall and injure his back. William Mustard, an accident investigator employed by PECO, arrived on the scene and determined that the displaced grates had never been rewelded. Mustard testified that after the welds were removed, the position of the grates had shifted until they no longer rested on their structural supports. Mustard described the condition created by the removal of the welds as an obvious hazard, but he noted that the hazard was apparently not recognized by the PECO craftsmen who left the grates unwelded. PECO had a safety education program for the work force but did not include in this program any instruction on proper catwalk maintenance.

Under these circumstances, there can be little doubt that PECO's negligent maintenance of the catwalk was the direct cause of John Mathis' injury. The question on appeal, however, is not whether PECO was negligent but whether UE & C was negligent. Appellees' theory at trial was that UE & C breached a duty of care owed to workers at the Eddystone Plant by designing a catwalk which could become unstable if PECO did not take necessary safety precautions. ¹ In support of this position, appellees called as an expert witness George Rago, a construction safety specialist. Rago testified that UE & C could have avoided the accident by installing hinged grates that would swing open whenever workers needed to enter the tank's access door. Appellees therefore assert that by securing the grates with tackwelds rather than hinges, UE & C created an unreasonable risk that PECO would remove the tackwelds and would never replace them.

UE & C argued that hinged grates are more dangerous than welded grates because a worker may fall through a catwalk if a hinged grate is inadvertently left open. However, we need not determine whether hinged grates or welded grates are the optimum catwalk design. The central issue in this case is not whether UE & C built the safest possible catwalk but whether UE & C negligently constructed an unreasonably dangerous catwalk. This in turn depends upon whether UE & C should have been expected to anticipate that PECO would leave the grates unwelded.

A company which manufactures and erects a structure owes a duty of care to people who must work in the vicinity of that structure. Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1949). This duty includes an obligation to design the structure in such a way that it will not be rendered unsafe because of the foreseeable actions of a third party. Smith v. Hobart Manufacturing Company, 302 F.2d 570, 573 (3rd Cir.1962). See generally Restatement (Second) of Torts § 302 (1965) (negligent act or omission may involve an unreasonable risk of harm to another through the foreseeable action of a third person.) However, the wrongful actions of a third party are not deemed to be foreseeable simply because the defendant could have speculated that they might conceivably occur. "Want of ordinary care consists in failure to anticipate what is reasonably probable--not what is remotely possible." Tua v. Brentwood Motor Coach Company, 371 Pa. at 575, 92 A.2d at 211 (1952). See, e.g., Kronk v. West Penn Power Co., 422 Pa. 458, 462, 222 A.2d 720, 721-22 (1966); Jowett v. Pa. Power Co., 383...