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ROBERT COX AND GLORIA COX v. TURNER CONSTRUCTION COMPANY (04/13/88)

filed: April 13, 1988.

ROBERT COX AND GLORIA COX, HIS WIFE
v.
TURNER CONSTRUCTION COMPANY, APPELLANT, V. OTIS ELEVATOR COMPANY



Appeal from the Judgment entered on December 24, 1986, in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 84-06157.

COUNSEL

Louis C. Long, Pittsburgh, for appellant.

Edward J. Balzarini, Jr., Pittsburgh, for Cox, appellees.

Beck, Johnson and Hester, JJ. Beck, J., concurs in the result.

Author: Hester

[ 373 Pa. Super. Page 216]

Turner Construction Company ("Turner") appeals from the judgment entered following a jury verdict in favor of plaintiffs, Robert and Gloria Cox. Turner seeks reversal on the basis of alleged trial errors, chief among them the trial court's refusal to hold that Turner was plaintiff-Robert Cox's statutory employer under the Workmen's Compensation Act. Finding no merit to Turner's contentions, we affirm.

United States Steel Corporation planned to construct a skyscraper on a site which it owned on Grant Street in Pittsburgh. It designated USS Realty Development

[ 373 Pa. Super. Page 217]

("USR"), a division of United States Steel Corporation, as construction manager for the project. USR contracted with Turner to be the contractor, and negotiated a separate contract with Otis Elevator Company ("Otis") to install the elevators and escalators. Plaintiff, Robert Cox, whose injury led to this action, was an employee of Otis. Although it was Turner's responsibility to supervise the construction, it did not subcontract Otis; rather, USR itself subcontracted Otis. Turner's contract with USR provided:

Under no circumstances shall contractor without the express written consent of USR, enter into any contracts for the construction of the Dravo Tower, it being the intent of USR to enter into all such contracts directly and thereafter (except as to the obligations of USR to make payment for work satisfactorily completed by the subcontractor and accepted by USR, the Contractor, and Architect) USR shall assign all of its contracts to Contractor.

USR also reserved the right to receive payments from subcontractors in the event that it incurred special expenses or damages as a result of subcontractors' activities. The contract which USR entered into with Otis provided for the partial assignment of USR's rights and liabilities to Turner.*fn1

During the course of construction, plaintiff, an elevator mechanic for Otis, was assigned to transport to the thirtieth floor a load of materials and a Johnson bar dolly. Contrary to standards set by the American National Standards Institute, the Associated General Contractors of America, and the National Safety Council, the hoist (elevator) in which plaintiff was riding was not completely enclosed, and the Johnson bar protruded out the unenclosed side. As the

[ 373 Pa. Super. Page 218]

    hoist passed the fifteenth floor, descending elevator counterweights struck the protruding Johnson bar, jolting the hoist and knocking the plaintiff down. His foot dangled off the side of the hoist and was crushed between the floor of the hoist and the door sills of two floors of the building. This action against Turner followed.

Following a jury trial, a verdict was entered in plaintiff's favor finding Turner sixty-five percent negligent in causing plaintiff's injuries and awarding damages in the sum of $119,619.50. The trial court rejected Turner's contention that it was plaintiff's statutory employer, finding it was not immune from common law liability. We agree.*fn2

In assessing Turner's contention that it was the injured employee's statutory employer, we are mindful of the following guidelines:

[V]ery great care . . . must be exercised before allowing an employer to avoid his liability at common law by asserting that he is a statutory employer. Section 203 of the Workmen's Compensation Act, which was designed to extend benefits to workers, should not be casually converted into a shield behind which negligent employers may seek refuge . . . .

Stipanovich v. Westinghouse Electric Corp., 210 Pa. Super. 98, 106, 231 A.2d 894, 898 (1967). See Grant v. Riverside Corp., 364 Pa. Super. 593, 528 A.2d 962 (1987).

In construing section 203 of the Workmen's Compensation Act, our courts have held that five elements must be present before a contractor may be considered the statutory employer of another contractor's employees.

To create the relation of statutory employer under section 203 of the act, all of the following elements essential to a statutory employer's liability must be present: (1) An ...


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