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decided: November 1, 1978.


J. 944 April Term, 1977, Appeal from the Order Entered on July 7, 1977 in the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division at No. 3923 October Term, 1973.


Allan H. Cohen, Pittsburgh, for appellant.

P. R. Riley, B. W. Ashbaugh, Paul D. Kruper, and W. Arch Irvin, Jr., Pittsburgh, with them Wayman, Irvin & McAuley, Pittsburgh, for appellees.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, J., files an opinion in support of affirmance in which Price and Van der Voort, JJ., join. Hester, J., files an opinion in support of reversal in which Jacobs, President Judge and Spaeth, J., join. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 260 Pa. Super. Page 298]

The six Judges who decided this appeal being equally divided, the order of the Court below is affirmed.

[ 260 Pa. Super. Page 299]

CERCONE, Judge, in support of affirmance:

This is an appeal from the denial of a motion to take off a compulsory non-suit in a trespass action. We affirm the decision of the lower court.

Plaintiff, Leo McKenzie, sustained personal injuries while employed as a bricklayer for Dickerson Structural Concrete Corporation, an additional defendant joined in this case. Dickerson was a subcontractor hired by the general contractor, Nadco Construction, Inc., another additional defendant in this case, to lay concrete-plank floor-ceiling in a 14-story apartment building in the East Hills of Pittsburgh. The remaining additional defendants, Tassos Katselas and R.M. Gensert Associates, were the architect and engineers on the project respectively. The defendant, Cost Brothers, Inc. was the subcontractor for the construction of the masonry walls on the project.

The work to be done by Cost was to construct the walls of the apartment building which consisted of eight-inch concrete block and four inch brick veneer. In the corridor walls, a 900 pound lintel was to be placed over each doorway to complete each doorway frame.

The work to be done by Dickerson was to install four feet wide concrete planks that would serve as the ceiling for the first level and as the floor for the next level. These concrete planks were installed with their ends resting on the walls constructed by Cost.

On Friday, October 1, 1971, Cost had proceeded with the construction of the walls of the second floor of the building and some of the lintels over the doorways had been set in place. At about 3:30 P.M. that day, one of Cost's laborers was instructed to adjust the lintels which had been placed over the doorways. This task involved positioning the lintels and inserting mortar to seal the lintel into the brick on

[ 260 Pa. Super. Page 300]

    which it was placed. The laborer was only able to do this on one of the lintels on the second floor before it was time to quit work for the day.

On Saturday, October 2, 1971, Dickerson's crew arrived on the site to lay the concrete planks on the walls constructed by Cost. Plaintiff, Leo McKenzie, was instructed to climb up on the second story wall of the building to help guide and position a plank that would be hoisted up by a crane below. As plaintiff walked along the wall, he stepped on a lintel which had been placed over a doorway but had not been adjusted or sealed. In McKenzie's words, "It [the lintel] started to move, and as it moved, I felt myself going. So in the meantime I sort of jumped and landed on my feet, and then I fell over." The lintel fell and landed beside the plaintiff, its impact damaging the floor below.

At the close of plaintiff's case on liability, all the defendants' motion for a compulsory non-suit was granted. Plaintiff's motion to take off the non-suit was heard by the court en banc and denied. The two issues preserved before us on appeal are whether the lower court erred in refusing to submit the question of Cost's negligence to the jury, and whether one of the plaintiff's witnesses, an engineer, should have been permitted to testify at trial.


When reviewing the issue of whether a compulsory non-suit should have been granted,

"Plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiffs favor. McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232 (1951). A compulsory non-suit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion. McNett v. Briggs, 217 Pa. Super. 322, 272 A.2d 202 (1970)." Cited in Jurich v. United Parcel Service of New York, Inc., 239 Pa. Super. 306, 361 A.2d 650 (1976).

[ 260 Pa. Super. Page 301]

In order for a case to go to the jury, a prima facie case must be shown. In a negligence issue, such as the one before us, plaintiff had to prove that one or more of the defendants owed a duty to the plaintiff, that the duty was breached, and the breach was the proximate cause of the injury sustained. Raibley v. Marvin E. Kanze, Inc., 221 Pa. Super. 234, 238, 289 A.2d 161 (1972). We agree with the opinion of the lower court that plaintiff's testimony did not show negligence on the part of defendants but merely demonstrated the happening of an accident for which there can be no recovery. Raibley v. Marvin E. Kanze, Inc., supra.

When making that determination, we find first that defendant, Cost, as a subcontractor, owed plaintiff, a business visitor, a duty of reasonable care in protecting him from injury. In Duffy v. Peterson, 386 Pa. 533, 126 A.2d 413 (1956) and Bitting v. Wolfe, 368 Pa. 167, 82 A.2d 21 (1951), our Supreme Court applied sections 384 and 343 of the Restatement (2d) of Torts*fn1 to the subcontractor situation,

[ 260 Pa. Super. Page 302]

    thereby adopting this standard of reasonable care under these facts.

Appellee, Cost, concedes that such a duty of due care was owed the plaintiff. However, Cost argues there was insufficient evidence produced to support a jury finding that the duty was breached in this case. We agree. The facts established through the testimony, and so comprehensively set forth in the opinion of the lower court, show that Cost was responsible for the construction of the masonry walls. The Cost wall was not complete on the day Dickerson arrived to construct the floors; the eight inch concrete block wall had been constructed and the lintels set in place, but the four inch brick veneer and the adjusting and sealing of the lintels had not taken place. Cost did not work on the site on Saturday, the day of the accident, although there is testimony by one Cost employee that he had heard Dickerson would be on the job that day. There is no evidence that Cost knew Dickerson employees would be walking on the incomplete walls. The Dickerson foreman testified that the general contractor was responsible for the scheduling of the subcontractor's work, but there was no further evidence of any work schedule for the Saturday in question.

Case law does not support a finding of negligence based on these facts alone. First, plaintiff did not establish whether the practices used by Cost in constructing the masonry walls and leaving them incomplete breached any duty Cost owed Dickerson. Comment d under Section 343 of the Restatement (2d) of Torts*fn2 requires the possessor of land, i. e., the contractor, ...

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