Appeal from the Judgment of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 81-32590.
Richard L. Rosenzweig, Pittsburgh, for appellant.
Allan H. Cohen, Pittsburgh, for appellee.
Brosky, Del Sole and Cercone, JJ.
[ 364 Pa. Super. Page 594]
This is an appeal from the denial of post-trial relief below, following a jury trial in which a verdict of $2,138,548.00 was entered in appellee's favor. Appellant raises seven contentions:
[ 364 Pa. Super. Page 595]
(1) does the Pennsylvania Workmen's Compensation Act permit the injured employee of a subcontractor to sue another subcontractor working on the same job site for tort damages?;
(2) was appellee's expert witness permitted to testify to matters beyond his competence?;
(3) was it error for the trial court to refuse to charge the jury that assumption of the risk is a defense in products liability actions?;
(4) did appellee's counsel make an improper "adverse inference" argument, concerning appellant's decision not to call a witness, in his closing?;
(5) did appellee argue a theory of liability not present in the complaint?;
(6) did appellee fail to sustain her burden of proof?; and
(7) was the damage award the product of passion and sympathy?
After careful consideration of the record below and the briefs presented to this Court, we fail to find any error in the trial court's resolution of the above-enumerated contentions, and accordingly affirm.
This suit arises from an accident which occurred on June 15, 1981, during the construction of the One Oxford Centre building in Pittsburgh. The general contractor on the project was Turner Construction Company (hereinafter "Turner"). Turner hired both Riverside Corporation ("Riverside") and ("Reiling") as subcontractors on the project.*fn1 It was the function of Riverside, pursuant to the agreement, to install a double-well material hoist, which is, in essence, an elevator that is used to carry materials up and down during construction. Reiling, on the other hand, was to provide miscellaneous metal work, as well as skilled ironworkers, for the project. Decedent was an ironworker for Reiling.
[ 364 Pa. Super. Page 596]
The material hoist tower erected by Riverside was approximately seven feet away from the outside framework of the building. In order to construct platforms between the edge of the hoist car and the side of the building, certain diagonal and horizontal braces had to be removed from the side of the hoist car facing the seven foot gap. To do this, ironworkers in the hoist car had to remove the nut attached to the bolt which kept the braces in place.
On the date of the accident, decedent was attempting to remove the braces in order to create access for the building of a platform to the twelfth floor. However, after removing the nut, the bolt holding the braces in place would not come off. Attempting to loosen them, decedent pushed on the braces, which unexpectedly sprang off the bolt in a direction going away from the decedent. Decedent lost his balance, and fell out of ...