Thompson v. Anthony Crane Rental, Inc.

• Decision Date: 18 April 1984
• Citation: 325 Pa.Super. 386,473 A.2d 120
• Parties: William E. THOMPSON and Ruth Thompson, His Wife, v. ANTHONY CRANE RENTAL, INC., and West Penn Power Company. Appeal of ANTHONY CRANE RENTAL, INC.
• Court: Pennsylvania Superior Court

Page 120

473 A.2d 120

325 Pa.Super. 386

William E. THOMPSON and Ruth Thompson, His Wife, v. ANTHONY CRANE RENTAL, INC., and West Penn Power Company Appeal of ANTHONY CRANE RENTAL, INC.

Superior Court of Pennsylvania.

Argued March 31, 1983.

Filed Feb. 10, 1984.

Reargument Denied April 18, 1984.

Seymour A. Sikov, Pittsburgh, for appellant.

Leonard E. Price, Pittsburgh, for Thompson, appellees.

Thomas F. Weis, Pittsburgh, for West Penn, appellee.

Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.

MONTGOMERY, Judge:

The instant action was instituted in trespass in the lower court by Plaintiff-Appellees, William E. Thompson and Ruth Thompson, his wife, to recover damages for injuries sustained by Mr. Thompson when the boom of a truck crane owned by Defendant-Appellant, Anthony Crane Rental, Inc., struck high voltage electrical wires on the premises of Defendant-Appellee, West Penn Power Company. The case proceeded to a trial before a jury and on March 20, 1981, the jury returned a verdict in favor of the Appellees. The verdict was later molded by the lower court to read as follows:

"AND NOW, to-wit, this 30th day of March, 1981, A verdict in favor of West Penn Power Company and a verdict against Anthony Crane Rental, Inc. in the amount of $500,000.00 in the claim of William E. Thompson under § 402A of the Restatement of Torts and in the amount of $490,000.00 in favor of William E. Thompson in the negligence case against Anthony Crane Rental, Inc. Also a verdict for Ruth Thompson in the amount of $150,000.00 in the consortium claim under § 402A of the Restatement of Torts and in the amount of $147,000.00 in the consortium claim in the negligence case. These verdicts shall be construed not to be cumulative and the liability of Anthony Crane Rental, Inc. shall not exceed $500,000.00, in any event, in the claim of William E. Thompson nor $150,000.00, in any event, in the claim of Ruth Thompson. The verdicts shall be with detention damages in accordance with R.C.P. 238. This remolding supercedes molding by the court of March 20, 1981. The parties shall have 10 days from March 30, 1981 to file appropriate motions in connection with this remolding."

Appellant Anthony Crane Rental raises numerous allegations of error on this appeal regarding the lower court's denial of its motions for judgment n.o.v. and for a new trial.

The facts of record show that in July, 1977, the J.L. Smith Plumbing Company, the employer of Appellee William Thompson, was involved in the relocation of water and drainage pipelines on the premises of Appellee West Penn Power Company at the Mitchell Power Station in Washington County, Pennsylvania. A truck crane together with the services of crane operator, Jerry Torek, was hired at a single hourly rate by J.L. Smith Plumbing Company from Appellant Anthony Crane Rental in order to relocate the heavy lengths of pipe that were to be used on this job.

Appellee William Thompson was Smith's foreman on this job. He testified that on July 18, 1977, the first day the truck crane was on the job, it was being used to move an 800 pound length of pipe when the boom of the crane began to swing back and forth so violently that the front wheels of the crane were lifted off the ground. Mr. Thompson immediately told Mr. Torek to either take the crane off the job or get it repaired. Mr. Thompson further testified that approximately 1 1/2 hours later Mr. Torek returned to Thompson and the crew and told them that this was the last crane available but that he had corrected the problem and the crane would function properly. The next day, the crane was operated without incident although the boom continued to drift a slight distance when first beginning a lift. Mr. Torek was aware of this and assured Mr. Thompson that he could control the lateral movement.

On the morning of July 20, 1977, Mr. Thompson determined that an excavated ditch was too wide to accommodate the wooden planks which he had been using to bridge the ditch for the purpose of laying pipe. The Plaintiff-Appellee then secured permission from West Penn Power to use an old piece of railroad track to bridge the ditch where the pipe was to be laid. At that time, Mr. Thompson was advised by a representative of West Penn that because the work was proceeding near the power lines, it should be assured that the boom of the crane did not come within eight feet of those lines. Mr. Torek then positioned the crane and lowered out-riggers which supported the crane in a stationary manner while it was being used to set the rail into place over the ditch. Mr. Thompson put both of his hands on the rail to steady it and to guide it into position. The record does not clearly indicate who, if anyone, was giving signals to the crane operator, Mr. Torek, during this period of time. After the rail had been lifted and was being moved sideways in order to position it over the ditch, Raymond Lovelidge, an employee of J.L. Smith Plumbing Company, testified that he noticed the boom of the crane was dangerously close to the power lines. Mr. Lovelidge attempted to signal Mr. Torek to stop the movement of the boom. However, the crane did not stop its lateral movement and the boom came into contact with the power lines. Mr. Thompson, with his hands on the rail, suffered severe electrical burns when the electric current passed through his body. This suit seeking damages was eventually filed.

Appellant first contends on this appeal that the lower court erred in refusing to grant its motion for a judgment n.o.v. on the ground that the Appellee, William Thompson, and the crane operator, Mr. Torek, were allegedly co-employees as a matter of law. Our courts have clearly recognized that where an employee is injured by the negligence of another servant of the same employer, the Workmen's Compensation Act ¹ provides the sole remedy available to the injured party. Vogel v. Jones & Laughlin Steel Corporation, 221 Pa.Super. 157, 289 A.2d 158 (1972). However, it is obvious in the instant case that there was a question as to whether the crane operator was in fact a co-employee of Mr. Thompson, due to the fact that Mr. Torek's services were leased by Mr. Thompson's employer from the Appellant, together with the crane. Since there is no question that Mr. Thompson could not have been considered an employee of the Appellant, the only issue is whether Mr. Torek could be considered as an employee of J.L. Smith Plumbing Company. The test for determining whether a "borrowing" employer is an employer for workmen's compensation purposes is whether the employer controlled or had the right to control the borrowed employee, not only as to the work to be done but also with regard to the manner of performing it. See English v. Lehigh County Authority, 286 Pa.Super. 312, 428 A.2d 1343 (1981) and cases cited therein. That case also holds that in deciding whether a party is an employer for the purposes of the application of the Workmen's Compensation Act, any factual discrepancies are for the trier of fact to resolve, and the question of whether the facts as they are determined to exist constitute an employment relationship is strictly a matter of law.

The record in the instant case shows that the testimony concerning who controlled Mr. Torek's manner of performing his work was conflicting. For example, although Mr. Torek asserted that he was told where to position his crane in relation to the ditch, Mr. Thompson testified that Mr. Torek made the decision. Thus, while Mr. Torek generally testified that the Appellee had complete control over the manner of work to be done, the Appellee provided testimony tending to show that Mr. Torek selected the specific manner of performing his tasks. The jury, by answer to special interrogatories, found that Mr. Torek was not a fellow employee of Mr. Thompson. The jury had sufficient evidence upon which it could have based this finding and it is therefore clear that the lower court did not err in denying Appellant's motion for judgment n.o.v. on the claim that the Plaintiff-Appellee was only legally entitled to receive workmen's compensation because of his co-employee relationship with Mr. Torek. We therefore reject his first claim of error.

The Appellant next contends that the lower court erred in submitting to the jury the Plaintiffs' claim based upon strict liability grounds, under Section 402A of the Restatement of Torts 2d, which claim was based upon the theory that there was a malfunction in the crane. ² It is argued that the Plaintiffs allegedly failed to clearly establish an absence of secondary causes for the accident, and that such circumstances precluded any finding of liability under § 402A, based upon the Plaintiff's malfunction theory.

It is well-established that a plaintiff can recover under § 402A if he proves that a product was defective when delivered to the buyer and that the defect caused the Plaintiff's injuries. Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 337 A.2d 893 (1975). § 402A standards can be applied to a lessor of a product as well as a seller. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977); Mandel v. Gulf Leasing Corp., 250 Pa.Super. 128, 378 A.2d 487 (1977). Moreover, in such cases, a plaintiff need not actually prove a specific "defect" to prevail; the proof of the occurrence of a malfunction of machinery, in the absence of abnormal use and reasonable secondary causes, is evidence of a defective condition for purposes of § 402A application. MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969). The Plaintiff in this case proceeded in a malfunction theory and the lower court charged the jurors on it. No proof of an actual defect was presented. The Appellant argues that a plaintiff must completely negate all possibility of a secondary cause in such a case. The Appellant cites the decision in Lenkiewicz v. Lange, 242 Pa.Super. 87, 363 A.2d 1172 (1976) for authority, but apparently has...