Robert J. Mongeluzzi and Stephen T. Saltz of
Daniels Saltz Mongeluzzi & Barrett and Edwin Dasbevsky of
Dashevsky Horwitz DiSandro Kuhn Dempsey & Novello secured a $3
million settlement seven days into a personal injury trial in
Delaware County before Judge Clement J. McGovern.
On March 10, 1993, the plaintiffs, Steven McHugh and Luke
DeFelice were seriously injured after a self-propelled elevating
work platform, also known as an aerial lift, capsized as the result
of an open sinkhole, according to plaintiffs attorneys.
Both men were employed by the contractor, Nason &
Cullen, as carpenters on a construction project for Esschem
Inc. They were building a chemical manufacturing plant, and
the design required a hole in the floor for the subsequent
installation of a scale. After concrete for the floor was
poured, a loss control representative from Nason & Cullen's
insurance carrier noted the existence of numerous pit holes and
recommended they be covered.
Progress photographs taken on March 3, 1993, a week before the
accident, revealed the 42-inch long, 27-inch wide and 8-inch deep
hole was still open.
"It is unclear who uncovered the hole," said Mongeluzzi.
The date of the accident, McHugh and DeFelice were putting the
final touches on the project, including painting a beam
approximately 12 feet above the concrete floor.
Since the general contractor had removed a majority of its
equipment from the job site, McHugh and DeFelice asked the foreman
of the electrical contractor, Hobbs & Co., if they could borrow
its aerial lift.
The lift was manufactured by Strato-Lift and sold to Equipment
Supply Co., the lessor who rented it to Hobbs & Co.
Although the lift was equipped with stabilizers, which would
have provided lateral support, the plaintiffs were not aware of
this feature. When McHugh was operating the lift, which could be
driven in an elevated position along the beam, while McHugh was
operating the lift, one of the tires went into the uncovered scale
hole causing it to tip over.
McHugh suffered nerve injury, and Jefferson Hospital recommended
a spinal cord stimulator. He was on crutches for two years and
currently walks with a cane. His claim for lost wages was estimated
to be approximately $1.4 million to $2 million.
DeFelice fractured his right leg in two places and shattered his
ankle. Since he was unable to return to work, his lost earnings
were estimated to be between $700,000 and $1.2 million.
McHugh and DeFelice claimed that Stato-Lift was liable under
strict liability for failure to provide interlocking stabilizers.
The code requires aerial lifts to have interlocking
Equipment Rental Co. was also sued under strict liability as the
supplier of a defective product which failed to train the Hobbs
& Co. representative who ultimately took delivery of the
The 1990 American National Standards Institute code required
lessors of aerial lifts to provide safety training upon delivery,
and, according to Mongeluzzi, it was proven that adequate training
was never given.
A negligence action was brought against Hobbs & Co. on
grounds that when they leased the aerial lift, there was a duty to
train any person who used the lift in the proper safety precautions
as part of their contract with Equipment Supply.
"Hobbs & Co. were not sued under a strict products liability
theory because they
Esschem had a contract with an on-site construction manager
whose duty it was to inspect the premises for Occupational Safety
and Health Act compliance. The plaintiffs argued that the manager
was an agent of Esschem, and the duty to inspect the premises was
imputed to the company.
McHugh and DeFelice's employer, Nason & Cullen, were not
sued directly, but were joined as defendants as part of an
The other defendants claimed it was Nason & Cullen's
responsibility to ensure that the hole was covered and that all
employees were properly trained in safe usage of an aerial
Mongeluzzi said that because this case involved both negligence
and strict liability claims, with proportionate liability shares,
he argued the proposition set forth in the 1995 Pennsylvania
Superior Court decision Smith v. Wiessenfels Inc. applied.
Smith applies when there are potentially negligent and strictly
liable defendants and a comparatively negligent plaintiff, said
In Smith, the product owner was 25 percent negligent and the
product manufacturer was 45 percent responsible. Added to the mix
was a 30 percent comparatively negligent plaintiff. With strict
liability proven against the product manufacturer,
the plaintiff could collect 100 percent of his or her damages
from the manufacturer. The manufacturer could then institute an
action for contribution from the other defendant, but only to the
extent that the owner-defendant was negligent.