Malanchuk v. Tsimura, Superior Court En Banc, 1379 EDA 2012
Dec 16, 2014
OUTCOME: summary judgment reinstated for Bob's client in Dec. 2014
Plaintiff appealed a summary judgment in a consolidated case with a remaining defendant. Superior Court overturned the summary judgment. Bob appealed to Superior Court En Banc and received an unanimo...us decision requiring the Plaintiff to try his case against the remaining Defendant before appealing the summary judgment, thereby reinstating the summary judgment in favor of Bob's client.
Insurance
Liberty Mutual a/s/o George Lawrence v. Domtar
May 29, 2014
OUTCOME: PA Supreme Court Granted Allocatur
Liberty Mutual paid workers' comp benefits regarding a slip and fall injury on Domtar's property. The Superior Court denied the carriers' right to subrogate and the Supreme Court will now decide the c...ase. I filed my state Supreme Court briefs, and completed oral argument. Decision by the high Court is still pending.
Personal injury
Fireman's Rule Case
Aug 20, 2012
OUTCOME: settled before trial
As a volunteer fire chief, Don Smith was the first to arrive at a townhouse fire. Before entering the building, he learned that the subject building was unoccupied and still under construction. Chief... Smith knocked down a fire in the corner of the family room emanating from a box with their water cans, but noticed the fire breached the drywall and proceeded upstairs to check for fire spread. Upon entering the master bedroom he noticed smoke, but no fire. Suddenly the fire flashed from the floor because of a webbed joist system. As the fire chief backed out of the room, he fell from the balcony to the foyer which was missing a railing.
I received this assignment from the workers’ compensation carrier a few weeks before the statute of limitations was about to run. The case was not pursued because other attorneys had perceived that the firefighter would be precluded by the Fireman’s Rule. The Fireman’s Rule is an extension of the assumption of the risk doctrine wherein firefighters cannot sue for injuries relating to their firefighting efforts because they have assumed that risk. In my analysis, I realized that his injuries were not caused by the fire, but by a property defect, namely, a missing safety railing on the upper balcony.
I filed in Lehigh County Court of Common Pleas in Pennsylvania, the defendant painters stored oily rags they used for staining wood in a box which spontaneously combusted. Photographs documented the missing railing and the floorboards where the fire chief’s breathing tank impacted. Expert Mark Suschecki of Plick & Associates identified OSHA violations regarding the missing railing and opined it created an unreasonably dangerous defect.
The Defendants filed Summary Judgment Motions based primarily on the Fireman’s Rule and the fact that they had no duty to anticipate the fireman entering the property. The Court found that the Fireman’s Rule did not apply because his injuries were caused by a property defect and not his firefighting efforts. Secondly, the rules of construction safety applied to expected and unexpected visitors. After prevailing on the Summary Judgment Motions, a settlement was reached before trial wherein the carrier received a full recovery of its lien.
Bob Horn is the Chair of the Subrogation Group at ConnorsLaw, LLP. If you have questions about this case, please e-mail him at [email protected]
Personal injury
Subrogation of a Construction Case
Feb 28, 2011
OUTCOME: verdict win
The plaintiff, who worked for a lumber company, came to the construction site of a single home in order to drop off a ten foot decorative column on his way home from work. He arrived at the constructi...on site, which had no electricity, after dark. He decided not to put it in the garage since there were no garage doors, and his general policy was to leave the materials where they would be installed for the convenience of the contractor. Before taking the pillar from his pickup truck, he walked into the property and laid his flashlight on the floor to provide a line of light to walk the pillar into the living room. As he turned, he fell into the cut-out hole for the basement stairs.
The Plaintiff filed a third-party case in the Superior Court of the State of Delaware against the subcontractor who was framing the house and failed to install guardrails around the cutout. The only excuse the framers gave was that it got too dark and they did not expect anyone to come to the site after 5:00. The Plaintiff refused to sue the general contractor because of his business relationship with the GC. As such, I filed the intervening subrogation action against the framers who negligently failed to install the safety railing and the general contractor ordered the column and failed to provide a safe environment.
Two different sets of defendants in the same case created an interesting scenario for the jury to consider in the comparative negligence call and begs the question “How much does it help to include the general contractor in construction subrogation?” In the Plaintiff’s case the jury found 80% comparative negligence on the subcontractor and 20% on the Plaintiff. After further instruction by the Judge, the jury was sent back to decide the liability between the general contractor, the subcontractor, and the Plaintiff. The jury reapportioned liability as: 55% subcontractor, 32.5% general contractor, and only 12.5% against the Plaintiff. In summary, the workers’ compensation subrogation lien recovery increased 12.5% because I added the general contractor in the case.
Bob Horn is the Chair of the Subrogation Group at ConnorsLaw, LLP. If you have questions about this case, please e-mail him at [email protected]
