Willey v. Minnesota Min. & Mfg. Co., HAVERSTICK-BORTHWICK
| Decision Date | 20 February 1985 |
| Docket Number | Nos. 84-1059,HAVERSTICK-BORTHWICK,84-1075 and 84-1076,84-1063,s. 84-1059 |
| Citation | 755 F.2d 315 |
| Court | U.S. Court of Appeals — Third Circuit |
| Parties | John J. WILLEY and Linda Willey, his wife, Appellants in 84-1075, v. MINNESOTA MINING & MANUFACTURING COMPANY, Appellant in 84-1059, v.COMPANY, Appellant in 84-1076, and Dresher Mechanical Company, Appellant in 84-1063. |
Charles W. Craven (argued), John P. Penders, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for Minnesota Mining & Mfg. Co.
Henry T. Reath (argued), Peter J. Hoffman, Dwight Reginald Whitt, Duane, Morris & Heckscher, Philadelphia, Pa., for Dresher Mechanical Co.
James J. Donohue (argued), Mark L. Parisi, White & Williams, Philadelphia, Pa., for Haverstick-Borthwick Co.
Leon W. Silverman (argued), Stein & Silverman, Philadelphia, Pa., for John and Linda Willey.
Before HUNTER and WEIS, Circuit Judges, and COHEN, District Judge. *
In this diversity case a jury awarded a verdict in favor of a subcontractor's employee who was injured while working on the defendant's premises. We conclude that the verdict is sustainable despite the defendant's assertion of trial error. We also determine that the trial judge properly ruled that, based on contractual provisions, defendant was entitled to indemnification from the general contractor which in turn was to be reimbursed by a subcontractor. Accordingly, we will affirm.
After a jury trial, plaintiff recovered a verdict against Minnesota Mining & Manufacturing Company (3M) for personal injuries received while working on the company's premises. 3M and the third-party defendants--various contractors doing refurbishing at the company's plant--submitted third-party indemnification claims to the court. After briefing but without any additional evidence, the court entered judgment in favor of 3M against Haverstick-Borthwick Company, the general contractor, and in its favor against its subcontractor, Dresher Mechanical Company. All parties have appealed various phases of the case.
3M contracted with Haverstick-Borthwick to perform certain construction work at 3M's plant in Bristol, Pennsylvania. Haverstick-Borthwick subcontracted part of the work to Dresher Mechanical, which in turn entered into a subcontract with the Wegmann Corporation.
Plaintiff, a sheet metal worker employed by Wegmann, was instructed to perform certain duct work at the 3M site. His assignment was a rush job, and his employer told him to use ladders and other equipment at the 3M plant. He took with him only his tool box.
At the worksite, plaintiff found an aluminum ladder leaning against a wall and used it to reach the ducts near the roof. As he began to burn away part of a metal duct, an employee of Haverstick-Borthwick, standing below, acted as a "fire watch."
Because his work was not completed, plaintiff returned the following day. He again used the aluminum ladder and as before, an employee of Haverstick-Borthwick acted as a fire watch. However while plaintiff was working, an employee of 3M came by and insisted that his company security guard act as fire watch. Plaintiff then descended the ladder and waited. When the 3M security guard arrived, plaintiff began to ascend the ladder. After he had climbed about 8 to 10 feet, the foot of the ladder slid out from under him, causing plaintiff to fall and severely injure his ankle.
Before using the ladder, plaintiff had noticed that it lacked nonskid safety feet. According to his testimony, he did not ask the security guard to steady the foot of the ladder because it was not customary to ask employees of the customer for assistance. A foreman for Haverstick-Borthwick testified that the ladder had been in the area for several months and that he had used it himself on two earlier occasions. The 3M supervisor of safety and security conceded that his security guards had authority to take an unsafe ladder out of service.
The jury found that 3M supplied the ladder, that the company was 62 percent negligent, and that the plaintiff's contributory negligence amounted to 38 percent.
3M had filed third-party complaints against Haverstick-Borthwick and Dresher seeking contribution and indemnity based on negligence, as well as indemnity based on provisions in the construction contracts. Before the trial began, 3M withdrew its claims against the contractor and subcontractor for contribution based on negligence. The parties agreed to submit the contractual indemnification issues to the court if plaintiff recovered a verdict against 3M. Although the issue of their liability was not to be submitted to the jury, counsel for Haverstick-Borthwick and Dresher were present during the trial and participated in the interrogation of witnesses.
After the jury returned its verdict in favor of the plaintiff, the court turned to the indemnity issues. Following briefing but without any further factual submissions, the district court ruled that the indemnification clauses in the contracts required Haverstick-Borthwick to indemnify 3M and in turn, Dresher to indemnify Haverstick-Borthwick.
The court concluded that the "sole negligence" of 3M exception was inapplicable for two reasons. First, the jury found that plaintiff was responsible in part for the accident, and his negligence under the terms of 3M's contract was chargeable to Haverstick-Borthwick. Second, the court found "on the evidence presented, the conclusion is inescapable that Haverstick-Borthwick and its various subcontractors (for whose conduct Haverstick-Borthwick was responsible, vis-a-vis 3M) were negligent in failing to inspect and assure themselves concerning the safety of the ladder used by plaintiff."
Although conceding that the comparative negligence statute provided room for argument, the court was not dissuaded from its ruling. The contractors contended that since 3M sought indemnity only for the amount assessed against it after deducting that attributable to the plaintiff's contributory fault, the "sole negligence" exception should apply. The district judge concluded that the "sweeping language of the indemnification clause indicated that the parties did not intend a different result [because] of comparative negligence principles."
The district court read these provisions as requiring Dresher to indemnify Haverstick-Borthwick.
On appeal, plaintiff contends that the defense of contributory negligence was not available to 3M because it was guilty of negligence per se for violating Pennsylvania safety standards for ladders. 3M, however, avers that it was not negligent per se since it did not violate a statute. 3M argues that ladder safety standards enacted by the Pennsylvania Department of Labor and Industry are regulations, not legislation. Moreover, 3M argues that these regulations apply only to an employer-employee relationship and therefore are not relevant in this case.
We doubt that a negligence per se issue is presented here. We need not resolve that question, however, because in Congini v. Portersville Valve Company, 504 Pa. 157, 470 A.2d 515 (1983), the Pennsylvania Supreme Court decided that even when negligence per se was present, the plaintiff's contributory negligence was a defense. McSparren v. Hanigan, 225 F.Supp. 628 (E.D.Pa.1963), aff'd, 356 F.2d 983 (3d Cir.1966), on which plaintiff relies, is clearly distinguishable, and in any event must be read in light of the more recent Congini case.
We are persuaded that the district judge properly submitted the issue of the plaintiff's contributory negligence to the jury. Indeed, a dispassionate review of the record shows that the jury was most lenient to plaintiff in assessing the comparative fault between him and 3M. On this record, if the percentages had been transposed, that result could be easily sustained.
3M appealed the district court's denial of its motion for judgment n.o.v. or new trial. Defendant contends that the court erred in permitting the jury to consider the Pennsylvania Department of Labor regulations as evidence of the proper standard of care and in charging on Restatement (Second) of Torts Sec. 392. 3M also asserts trial errors in the admission of testimony on the use of another's ladders, the practices of its safety supervisor, conversations of Haverstick-Borthwick's foreman with 3M...
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