IN THE SUPERIOR COURT OF PENNSYLVANIA
XXX EDA 2012
NICHOLAS DOE,
Appellee
vs.
BIG CORPORATION, INC.
Appellant
______
BRIEF OF APPELLEE
NICHOLAS DOE
______
Appeal from the Judgment entered on February X, 20XX
in the Court of Common Pleas of Philadelphia
at No. XXXX, December Term 20XX.
Thomas F. Lawyer, Esquire
XX Second Street
Media, PA 19063
610 891 XXXX
Attorney No. XXXXX
Attorney for Appellee,
Nicholas Doe
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TABLE OF CONTENTS
TABLE OF CITATIONS ………………….………………………...….…. ii
COUNTERSTATEMENT OF THE QUESTIONS INVOLVED ……....… 1
COUNTERSTATEMENT OF THE CASE ………………...... …………. 2
SUMMARY OF THE ARGUMENTS ……………….…….…..…....…….. 5
ARGUMENTS ……………………………………………………..……… 7
CONCLUSION …………………………………....……………..……...… 42
CERTIFICATE OF SERVICE ………………………..………...... 43
TABLE OF CITATIONS
Cases Page
Angelo v. Diamontoni,
871 A2d 1276 (Pa. Super. 2005) ...... 29
Boyle v. Independent Lift Truck, Inc.,
607 Pa. 311, 6 A3d 492 (2010) ...... 25
Carbis Walker, LLP v. Hill, Barth and King, LLC,
930 A2d 573 (Pa. Super. 2007) ……………………………. 12, 13
Childers v. Power Line Equipment Rentals, Inc.,
452 Pa. Super. 94, 681 A2d 201 (1996) ...... 26
Clark v. Bil-Jax, Inc.,
763 A2d 920 (Pa. Super. 2000) ...... 26
Cockerline v. Menendez,
411 N.J. Super. 596, 988 A2d 575 (2010) ...... 12
Commonwealth v. Brookins,
10 A3d 1251 (Pa. Super. 2010) …………………..……..…. 10
Cox v. Turner Construction Company,
373 Pa. Super. 214, 540 A2d 944 (1988) ...... 16
Criswell v. King,
575 Pa. 34, 834 A2d 505 (2003) ...... 31-32
Dougherty v. Conduit & Foundation Corporation,
449 Pa. Super. 405, 674 A2d 262 (1996) ...... 14, 15, 17
Eckroth v. Pennsylvania Electric, Inc.,
12 A3d 422 (Pa. Super. 2010) ...... 12
English v. Lehigh County Authority,
286 Pa. Super. 312, 428 A2d 1343 (1981) ...... 8, 17, 18
Graham v. Campo,
990 A2d 9 (Pa. Super. 2010) ...... 35
Gunn v. Grossman,
748 A2d 1235 (Pa. Super. 2000) ...... 32
Gutteridge v. A.P. Green Services, Inc.,
804 A2d 643 (Pa. Super. 2002) ...... 28-29
Hadar v. AVCO Corporation,
886 A2d 225 (Pa. Super. 2005) ...... 26, 27
Haines v. Raven Arms,
536 Pa. 452, 640 A2d 367 (1994) ...... 35
Handschuh v. Albert Development,
393 Pa. Super. 444, 574 A2d 693 (1990) ...... 27, 28
Hughes v. Seven Springs Farm, Inc.,
563 Pa. 501, 762 A2d 339 (2000) ...... 25-26
Hyrcza v. West Penn Allegheny Health Sysytem, Inc.,
978 A2d 961 (Pa. Super. 2009) ...... 21, 24
Jamison v. Westinghouse Electric Corporation,
375 F2d 465 (3rd Cir. 1967) ...... 18, 19, 20
Krysmalski v. Tarasovich,
424 Pa. Super. 121, 622 A2d 298 (1993) ...... 36
Laconis v. Burlington County Bridge Commission,
400 Pa. Super. 483, 583 A2d 1218 (1990) ...... 12
LeFlar v. Gulf Creek Industrial Park #2,
511 Pa. 574, 515 A2d 875 (1986) …………………………. 7, 8, 9, 18
Lenhart v. Cigna Companies,
824 A2d 1193 (Pa. Super. 2003) …………………….…….. 10
Long v. Norriton Hydraulics, Inc.,
443 Pa. Super. 532, 662 A2d 1089 (1995) ...... 28
Lopa v. McGee,
373 Pa. Super. 85, 540 A2d 311 (1988) ...... 31
McDonald v. Levinson Steel Company,
302 Pa. 287, 153 A 424 (1930) …………………………….. 14
Moure v. Raeuchle,
529 Pa. 394, 604 A2d 1003 (1992) ...... 11
Patton v. Worthington Associates, Inc.,
43 A3d 479 (Pa. Super. 2012) …………………………..…. 7, 9, 16, 18,
29, 30, 36
Paves v. Corson,
569 Pa. 171, 801 A2d 546 (2002) ...... 35
Potochnick v. Perry,
861 A2d 277 (Pa. Super. 2004) ...... 25
Riedel v. ICI Americas, Inc.,
968 A2d 17 (Del. Supr. 2009) ...... 12
Sprague v. Walter,
441 Pa. Super. 1, 656 A2d 890 (1995) ...... 35, 36
Staub v. Toy Factory, Inc.,
749 A2d 522 (Pa. Super. 2000) ...... 28
Struble v. Valley Forge Military Academy,
445 Pa. Super. 224, 665 A2d 4 (1995) ...... 28
Tesauro v. Perrige,
437 Pa. Super. 620, 650 A2d 1079 (1994) ...... 36
Wallis v. Southeastern Pennsylvania Transportation Authority,
723 A2d 267 (Pa. Cmwlth. 1999) ...... 26
Walters v. Kaufmann Department Stores, Inc.,
145 Pa. Super. 56, 20 A2d 865 (1941) ...... 8, 17, 18
Whitaker v. Frankford Hospital,
984 A2d 512 (Pa. Super. 2009) ...... 35
Statutes
77 P.S. §52 ...... 14
19 Del. Code §2311(a)(1) ...... 13
43
COUNTERSTATEMENT OF THE QUESTIONS INVOLVED
Whether Big Corporation has waived or forfeited its argument that it was Mr. Doe’s “statutory employer” for purposes of the Pennsylvania Workers’ Compensation Act?
Whether the Trial Court properly exercised its discretion when it denied Big Corporation leave to amend its post-trial motion to include an argument that it was Mr. Doe’s “statutory employer” for purposes of the Pennsylvania Workers’ Compensation Act?
Whether the Trial Court properly exercised its discretion when it permitted Mr. Doe’s counsel to state during his summation to the jury that a “deal” had been struck between OSHA and Big Corporation that led to the “deletion” of the citations against it?
Whether the Trial Court properly exercised its discretion when it refused to instruct the jury on assumption of the risk and “open and obvious” danger?
Whether a new trial is warranted due to the manner in which the jury apportioned the damages between Mr. Doe and Big Corporation?
Whether a new trial or remittitur is warranted with regard to the damages awarded by the jury?
COUNTERSTATEMENT OF THE CASE
In November of 2007, Nicholas Doe began employment as a laborer with a company known as Smith Drywall, and was assigned to a large construction site in the state of Delaware. Two months later, on January 10, 2008, he and another worker were given the task of discarding some scrap drywall that had been left on the third floor of one of the buildings under construction. Mr. Doe gathered the debris and began throwing it out of a third-floor doorway that opened directly to the outside of the building. That door had been left open with no fall protection of any kind. It had no guard rail, no netting, and no means to hook up a harness. (RR at 188a-191a, 193a-194a, 460a).
As he was casting the drywall out the doorway, a screw in one of the pieces caught on his clothing, causing him to fall out the opening, hit a balcony, and land on his right buttock 20 to 22 feet below. (RR at 456a-458a, 613a).
He initially tried to get up but felt “extreme pain” in his right hip area when he went to take a step. (RR at 461a). He continued to suffer as he lay on the ground waiting for an ambulance. (RR at 462a).
It was the “most pain” he had ever felt in his life. (RR at 465a).
Upon closer examination at the hospital, it was discovered that he sustained, among other things, a “non-displaced comminuted fracture” of his hip area. (RR at 365a, 371a). It was a “crush injury” that pushed a bone into his pelvis and caused fractures of his sacrum, acetabulum and pubic bone. (RR at 365a, 371a-375a).
The pain was still intense when he was discharged from the hospital, although his prescription for Percocet helped “slightly”. (RR at 465a).
In terms of every day effects of the injury, the pain remained so bad that he was unable to live on his own after being released from the hospital. (RR at 465a-466a). Even a minor task like shifting his weight caused “extreme pain”. (RR at 466a). He was fortunate to have a sister who took him in and cared for him for over 4 months. (RR at 466a).
Even so, the pain continued in his hip and pelvis well after he left his sister’s care. (RR at 478a-479a). Urination remained difficult and painful at times, as did sexual relations. (RR at 477a-478a).
In time, Mr. Doe commenced a civil action on the Court of Common Pleas of Philadelphia against the general contractor of the project, Big Corporation, Inc. (hereinafter “Big Corporation”), seeking recompense for his injuries.
The case was assigned to the Honorable Quinones Alejandro for disposition and a jury trial commenced on October XX, 20XX. In the end, the jury awarded Mr. Doe damages of $2,004,001.00 and apportioned 80% of the liability to Big Corporation and 20% to him.
Big Corporation filed timely post-trial motions for a new trial, judgment notwithstanding the verdict and remittitur. Then, after the time for filing those motions had passed, and over two months after the jury’s verdict, it sought leave to file a motion for judgment notwithstanding the verdict on the theory that it was Mr. Doe’s “statutory employer” and, thus, immune from suit under the Pennsylvania Workers’ Compensation Act. It did so in spite of the fact that it had failed to submit any jury interrogatories on this question, never argued the matter to the jury, never submitted any proposed jury instructions on the issue and, in general, failed to offer sufficient evidence to prove that the immunity was even available to it.
The Judge denied Big Corporation’s post-trial motions, as well as its motion for leave to supplement those motions. Judgment was then entered against it in accordance with the verdict as molded by the Trial Court, and a timely appeal was taken to the Superior Court.
SUMMARY OF THE ARGUMENTS
Big Corporation first argues that it should have been granted leave to supplement its post-trial motions so as to include an argument that it was immune from suit under the Pennsylvania Workers’ Compensation Act. Specifically, it wished to assert that it was Mr. Doe’s “statutory employer”.
The record reflects, however, that it failed to submit any jury interrogatories on this question, never argued this point to the jury and never submitted proposed jury instructions on the relevant law. This issue was raised well after the time to file post-trial motions had passed and over two months after the jury rendered its verdict and had been discharged. Only then did it ask the Trial Judge to act as a kind of surrogate jury and decide the question.
Under these circumstances, the ability to raise this defense has either been waived or forfeited and the Trial Judge acted well within her discretion when it denied Big Corporation’s motion to amend its post-trial motion.
Moreover, in any event, the immunity defense was not even available to it. The laws of Delaware were applicable to this question and the Workers’ Compensation laws of that State do not provide for “statutory employer” immunity. But even if Pennsylvania law applied, Big Corporation failed to present sufficient evidence that it was Mr. Doe’s “statutory employer”.
Big Corporation also contends that the Trial Court abused its discretion when it permitted Mr. Doe’s counsel to state in his closing arguments to the jury that a “deal” had been struck between OSHA and Big Corporation that led to the “deletion” of certain citations against it. The law is clear, however, that a lawyer is free to suggest any reasonable inferences from the evidence of the case. That is what occurred and counsel cannot be faulted for it.
There was also no error when the Trial Judge refused to instruct the jury on the concepts of assumption of the risk and “open and obvious” danger. To begin with, the record is utterly devoid of any evidence that Mr. Doe was subjectively aware of the danger he faced and, as such, he cannot be said to have voluntarily accepted the risk of falling from the building. Moreover, both of these concepts were covered fully by the Lower Court’s instruction on comparative negligence.
Also, a jury’s apportionment of liability may only be disturbed when it is so contrary to the evidence that it shocks one’s sense of justice. That threshold has simply not been reached herein.
Finally, no new trial on damages or remittitur is required.
Remittitur is only appropriate where the award is plainly excessive and exorbitant. The test is whether the verdict so shocks one’s sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption.
Similarly, a new trial on damages will not be granted unless the award is so grossly excessive that it shocks the court’s sense of justice.
Neither of these standards have been satisfied under the facts of this case. Mr. Doe’s injuries were painful and gruesome. The jury’s verdict falls far short of being “shocking” and should not be disturbed.
ARGUMENTS
I.
Big Corporation has waived or forfeited its argument that it was Mr. Doe’s “statutory employer” for purposes of the Pennsylvania Workers’ Compensation Act.
The case law is clear that the immunity granted an employer, or a “statutory employer”, under the Pennsylvania Workers Compensation Act is a defense that cannot be waived. LeFlar v. Gulf Creek Industrial Park #2, 511 Pa. 574, 515 A2d 875 (1986).
But it still must be proven to the jury. In fact, the Courts of this Commonwealth will not lightly deem an entity to be a statutory employer. The Superior Court recently stated that “very great care” should be exercised “before allowing an employer to avoid his liability at common law by asserting that he is a statutory employer”. Patton v. Worthington Associates, Inc., 43 A3d 479, 485 (Pa. Super. 2012) (citations omitted). The Court went on to point out that the Worker’s Compensation Act “was designed to extend benefits to workers” and that it “should not be casually converted into a shield behind which negligent employers may seek refuge”. Id (citations omitted).