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September 29, 1980

Joseph and Mary DiSALVATORE Administrator and Administratrix of the Estate of Michael DiSalvatore, Deceased

The opinion of the court was delivered by: LORD, III


This case is in a somewhat anomalous posture. It was tried before me without a jury. I made findings of fact to which I applied certain conclusions of law, resulting in a verdict for defendant. Plaintiff moved for a new trial. Following oral argument on the motion, I was persuaded that I had applied an incorrect standard of law. In effect, I had given an erroneous charge to the factfinder and I therefore granted the plaintiffs' motion. I have now reconsidered the testimony presented in both trials and have reached the conclusions which follow.

 Preliminarily, I adopt and reaffirm the findings of fact and conclusions of law previously filed, except as hereinafter noted, and as may be augmented by any additional findings of fact or conclusions of law appearing in this opinion. Finding of Fact No. 8 is amended to add as trial references N.T. 205, 270.

 Finding of Fact No. 8A is added following Finding of Fact No. 8 as follows: Defendant's failure to provide or require a safety net in the open shaft was negligence.

 Finding of Fact No. 10 is stricken.

 Finding of Fact No. 12 is amended to read as follows: it is impossible to determine from the evidence (a) whether, at the time of the accident, there was one plank remaining (N.T. 210, 212, 224) or three (N.T. 193, 194, 195); (b) whether decedent was caused to fall because he attempted to remove a plank alone (N.T. 193, 195) or because of the warped and rough condition of the plank he was standing on (N.T. 193, 196, 200, 220); (c) whether it was unsafe or improper for one man to continue to remove planking alone (N.T. 125, 213).

 Finding of Fact No. 14 is amended to read as follows: The absence of a required safety device, i. e., a net hung in the shaft, was the cause of DiSalvatore's death, although not the precipitating cause of his fall.

 Finding of Fact No. 15 is amended to read as follows: Ordinarily the removal of planking for an elevator shaft is a two-man job. However, there is an unwritten rule of construction work that an employee found standing idly, even if awaiting the return of his "buddy" to continue a two-man job, is subject to immediate dismissal (N.T. 125, 196). The following findings are added following Finding of Fact No. 15.

 Finding of Fact 15A-In continuing to remove the planking alone, plaintiff acted under the economic duress of the possible loss of his job if he stood idle and in working alone decedent did not act voluntarily or unreasonably (N.T. 125).

 Finding of Fact 15C-If a safety net had been in place in the elevator shaft immediately below the sixth floor, decedent would have suffered no injuries from the fall and his death resulted from the absence of the safety net.

 Finding of Fact No. 17Q is amended by striking the second sentence therefrom.


 Although Pennsylvania law governs the substantive issues of liability in this action, 28 U.S.C. ┬ž 1346(b), I face a formidable task in determining exactly what Pennsylvania law is as applied specifically to the facts before me. "(T) he concept that a federal court must determine state law is somewhat misleading inasmuch as it implies the existence of a readily accessible and easily understood body of state law." McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661 (3d Cir. 1980) (citation omitted). There is a body of state law pertinent to the facts of this case, but it is far from being "easily understood." Since Pennsylvania law is presently unclear, then, it is my job to predict what a Pennsylvania court would do if confronted with the facts before me. Of course, although this is not a diversity case, I adopt the same approach of making that prediction as if it were.

Such an estimate cannot be the product of a mere recitation of previously decided cases. Rather, as in any diversity case, a federal court must be sensitive to the doctrinal trends of the state whose law it applies, and the policies which inform the prior adjudications by the state courts.

 Becker v. Interstate Properties, 569 F.2d 1203, 1205-06 (3d Cir. 1977), cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).

 It will therefore be necessary to analyze the Pennsylvania cases and to resolve any apparent conflicts by the application of doctrinal trends, internal philosophical changes in the highest Pennsylvania court itself, federal decisional law applying state law, the Restatement of the Law, policies underlying state decisions and the presence or absence of result-influencing factors.

 Defendant relies exclusively on Barber v. John C. Kohler Co., 428 Pa. 219, 237 A.2d 224 (1968) in arguing that plaintiffs have failed to prove the necessary causal connection between the negligence of defendant and the accident. In Barber, plaintiff was working on a scaffold three feet above the ground. A brace on the scaffold slipped, causing plaintiff to fall into an open hole sixteen feet deep. He alleged that defendant's negligent failure to cover the hole caused his injuries to be more severe than they would have been had the hole been covered. The lower court sustained a demurrer which was affirmed. The Supreme Court said:

For appellant's injury resulted not from appellee's negligence, but from the slipping of the brace.... (W)hile appellant may have sustained greater injuries by falling to the bottom of the hole than he would have received had the hole been covered, that has no bearing on the cause of the fall. Whether the fall was caused by appellant's own negligence, as in the cases cited, or by a third party's negligence with regard to the scaffold cannot and need not be determined here. The same result obtains either way, for it is clear that appellee was not the cause of the fall.
... Moreover, a long line of cases in this court has held that the determination of the extent, if any, of incremental injury resulting from defendant's negligence is impossible to determine. This court has continually stated that, in a case like the instant one, a lessening of injury, absent defendant's negligence, is pure conjecture.

 Id. at 221-22, 237 A.2d at 225-26.

 In Barber, the court primarily relied on two earlier Pennsylvania Supreme Court cases, Frisch v. Texas Co., 363 Pa. 619, 70 A.2d 290 (1950) and Zlates v. Nasim, 340 Pa. 157, 16 A.2d 381 (1940).

The court below very properly said: "The presence of the defendant's grease pit had no connection with that slipping or tripping.... Had the opening been covered at the time, the plaintiff would have landed on the cover instead of in the pit, and whether he would have been hurt more or less is pure conjecture."
An analysis of these cases makes it clear that the grease pit was in no way the cause of plaintiff's injury and recovery cannot be predicated upon the mere conjecture that his injuries might have been less serious had the grease pit not been there.

 363 Pa. at 622, 624, 70 A.2d at 292, 293.

 Zlates is another fall case in which defendant's conduct had no bearing on plaintiff's initial fall. In that case, plaintiff left defendant's porch via a screen door. When she pushed the door open, it stuck and stopped against the side of the building. She reached out to close it, but lost her balance and fell into an open areaway and down the cellar ...

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