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January 18, 1963


The opinion of the court was delivered by: WOOD

This common law trespass action was instituted by the employee of a subcontractor naming as defendant the general contractor. Plaintiff alleged in his amended complaint that the injury sustained was the result of a personal attack on him by a fellow employee and, therefore, was not precluded by the provisions of the Workmen's Compensation Act of Pennsylvania, Section 301(c), of the Act, of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411.

A jury trial was held on the question of liability alone from September 24 to September 27, 1962, after which the jury became hopelessly deadlocked and a mistrial was declared. The defendant now moves for a judgment in its favor in accordance with its prior motion for a directed verdict under Rule 50(b) of the Fed.R.Civ.P.

 Plaintiff Chamberlin was employed as a gang member at the time of the injury by Kolyn Construction Company, the subcontractor, hereinafter referred to as Kolyn. The general contractor and defendant, United Engineers and Constructors, Inc., hereinafter referred to as United, was engaged by the Philadelphia Electric Company, which, among other things, installed pilings on its property at Eddystone, Pennsylvania. During the course of the work, one Leonard Oesterberg was directing the operation of a crane to drop a beam in the area where plaintiff was working. As the beam was lowered to the ground it struck the plaintiff, causing injuries to his foot. Plaintiff contends that in ordering the beam dropped in the manner in which he did Oesterberg was motivated by personal animosity toward plaintiff and the resulting injury was caused by his deliberate act and was not accidental.

 There was uncontradicted testimony in the record that Oesterberg had been the plaintiff's foreman for three months prior to the injury, and that they drove twenty-five to fifty piles daily.

 On the date of this occurrence the terrain was extremely muddy and maneuverability was very difficult. The plaintiff and a fellow employee, A. Schurmann, were standing approximately two feet from a hole which contained a partly driven beam. Because this beam was a short one it had to be driven into the ground by using another beam, called a follower, which was attached to the crane by a cable. This follower was fifteen feet in length and weighed at least a ton. The cable connecting this beam to the crane had become fouled, restricting its operation. Schurmann and the plaintiff were engaged in freeing this cable.

 While the plaintiff and Schurmann were working at this task, Oesterberg, who was within twenty feet of them, hollered, 'Look out.', and ordered the crane operator to lower the follower which struck the plaintiff on his left foot.

 This record presents two questions: 1) Whether Leonard Oesterberg's act of ordering the crane operator to drop the beam was motivated by personal animosity toward the plaintiff, and 2) whether the defendant had any notice of this personal animosity.


 There is no dispute that the defendant is the statutory employer of the plaintiff under the Workmen's Compensation Act. *fn1" It follows that the defendant's liability is limited to workmen's compensation unless the plaintiff can show that the injury was the result of a purely personal attack by the assailant Leonard Oesterberg. *fn2"

 The plaintiff relies heavily on Dolan v. Linton's Lunch, 397 Pa. 114, 152 A.2d 887 (1959), which held that an employee can bring a common law action in trespass against his employer for injuries resulting from a personal attack based on reasons not connected with his employment. The Dolan case also holds at page 125, 152 A.2d at page 893:

 '* * * Here, however, it is the plaintiff who asserts he is not covered by the act and he must allege facts to show that he is not.' (Emphasis supplied)

 This Court, after consideration of all the testimony offered, viewed in the light most favorable to the plaintiff, is of the opinion that the plaintiff has not sustained his burden of proof by showing that this injury was the result of the personal animosity of the foreman, Lennie Oesterberg, toward the plaintiff. Nothing in the record convinces us that such viciousness, hatred or animosity prevailed between the parties as would trigger this alleged personal attack on the plaintiff.

 The plaintiff and Lennie Oesterberg only worked together on two jobs. One of these was three years prior to the job during which the plaintiff was injured. They had no outside personal relations. Their only contact occurred during work. Of their job relations, nothing was shown to convince us that Oesterberg had a violent dislike for the plaintiff. This is the only reasonable conclusion which can be reached, especially in light of Oesterberg's warning shout to the plaintiff just before the beam fell on his left foot.

 The Dolan case is the law followed in this Circuit when a Court is determining whether an injury is outside the Workmen's Compensation Act of Pennsylvania. Roney v. Paul Tishmain Co., Inc., 200 F.Supp. 75 (E.D.Pa.1961). The plaintiff has not sustained the burden of proof imposed by Dolan to our satisfaction.

 While plaintiff failed to allege in his complaint any liability on the part of this defendant as a possessor of land *fn3" and relied, as aforesaid, on the legal duty of the statutory employer to him beyond the scope of the Pennsylvania Workmen's Compensation Act, supra, he has argued to us that there was liability as a possessor of land running from this defendant to the plaintiff and we will, therefore, consider that point. *fn4"

 As we stated, both sides have agreed that defendant, the general contractor, was a 'statutory employer.' Therefore, whether United was in 'control' or 'possession of the premises' is of no legal consequence in light of the issue raised in this case, namely: whether plaintiff can maintain this trespass action or whether he is bound by the terms of the Pennsylvania Workmen's Compensation Act, which he admittedly has accepted.

 Nevertheless, we will discuss the facts and the law as to 'possession of the premises' as developed from the record.

 The testimony offered to show the defendant's possession of the premises was as follows:

 United had guards on the gates, some inspectors on the job, and a work shack and dispensary on the premises for the treatment of all the workers on this project. It was further shown that United did excavating and grading work to prepare the ground for other contractors.

 This land was owned by the Philadelphia Electric Company. Kolyn also had a work shack on the premises. Kolyn's representative further testified that United had no control over Oesterberg, nor any control over the work gangs and the performance of the work done by these gangs. Kolyn did all of its own hiring and firing and Kolyn hired Oesterberg. United was not in exclusive control of the work done on this job even though it was the general contractor. United's inspectors only approved or disapproved the results of Kolyn's work.

 The duty of a possessor or occupier of land toward business visitors is set out in the Restatement of Torts, § 343, entitled Dangerous Conditions Known to or Discoverable by Possessor, which states:

 'A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he

 '(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and

 '(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and,

 '(c) invites or permits them to enter or remain upon the land without exercising reasonable care

 '(i) to make the condition reasonably safe, or

 '(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility.'

 The duty imposed by this section as applied to the facts of the instant case required United to warn Kolyn, its subcontractor, of the alleged vicious nature of Oesterberg if Kolyn had no knowledge of this alleged viciousness. A general contractor such as United was not required to warn every employee of Kolyn of this alleged dangerous condition. Valles v. Peoples-Pittsburgh Trust Co., 339 Pa. 33, 13 A.2d 19 (1940); Engle v. Reider, 366 Pa. 411, 77 A.2d 621 (1951). United was not required to warn Kolyn, if the record demonstrated that Kolyn had knowledge of Oesterberg's animosity toward Chamberlin. *fn5"

 Assuming that the plaintiff's evidence is true, we have his own words that he had complained on several occasions to the partners of the Kolyn Construction Co., Messrs. Teenas and Mattson, concerning the alleged vicious propensities of Lennie Oesterberg. There is no evidence which shows that the plaintiff ever complained to any representatives of United. This leads the Court to the indisputable conclusion that Kolyn, who alone had control of Oesterberg, had notice of his alleged vicious nature from the plaintiff himself. Therefore, United was not obligated to warn Kolyn of this fact which it already had firsthand knowledge from the most interested party, Mr. Chamberlin. *fn6"

 At the close of the plaintiff's case, the defendant moved for a directed verdict. Later, at the close of all the evidence, the defendant renewed its motion for a directed verdict under Rule 50, which was denied. This Court is of the opinion that it was error to have submitted this case to the jury, as there is no material question of fact in this record, requiring a jury's determination. Therefore, this Court believes that the defendant is entitled to its motion for judgment on the whole record


 AND NOW, this 18th day of January, 1963, IT IS ORDERED that the defendant's motion for judgment under Rule 50(b) of Fed.R.Civ.P. is granted.

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