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.
On 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 stabilizers.
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 product.
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 indemnity agreement.
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 lift.
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 Mongeluzzi.
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.