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WILLIAM C. MARTIN v. ROBERT R. RECKER (12/13/88)

filed: December 13, 1988.

WILLIAM C. MARTIN, III AND LOUISE MARTIN, HIS WIFE,
v.
ROBERT R. RECKER, INDIVIDUALLY AND D/B/A RECKER TRANSFER COMPANY, APPELLANT. WILLIAM C. MARTIN, III AND LOUISE MARTIN, HIS WIFE, V. LINDA RONSTADT, PETER ASHER MANAGEMENT, INC., A CORPORATION, JESS S. MORGAN & CO., INC., A CORPORATION, DICEASARE/ENGLER/STANLEY THEATER COMPANY, A CORPORATION CLARK TRANSFER COMPANY, INC. A CORPORATION SHOWCO, INC., MERCY HOSPITAL OF PITTSBURGH, A NONPROFIT CORPORATION. APPEAL OF SHOWCO, INC.; WILLIAM C. MARTIN, III AND LOUISE MARTIN, HIS WIFE, APPELLANTS, V. ROBERT R. RECKER, INDIVIDUALLY AND D/B/A RECKER TRANSFER COMPANY. WILLIAM C. MARTIN, III, AND LOUISE MARTIN, HIS WIFE, APPELLANTS, V. LINDA RONSTADT, PETER ASHER MANAGEMENT, INC., A CORPORATION JESS S. MORGAN & CO., INC., A CORPORATION, DICEASARE/ENGLER/STANLEY THEATER COMPANY A CORPORATION, CLARK TRANSFER COMPANY, INC., A CORPORATION, SHOWCO, INC., MERCY HOSPITAL OF PITTSBURGH, A NONPROFIT CORPORATION



Appeal from the Judgment entered June 25, 1986 in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 83-8618 and G.D. 83-4530.

COUNSEL

John M. Silverstri, Pittsburgh, for appellant in No. 1009 and appellee in No. 1049.

David J. Obermeier, Pittsburgh, for appellant in No. 1019 and appellee in No. 1059.

Jon L. Friedman, Pittsburgh, for appellants in Nos. 1049 and 1059, and appellees in Nos. 1009 and 1019.

Del Sole,*fn* Popovich and Montgomery, JJ. Popovich, J., concurs in the result. Montgomery, J., files a concurring and dissenting opinion.

Author: Del Sole

[ 380 Pa. Super. Page 530]

Presented for our review are cross-appeals arising from a personal injury action. Among other issues, we are asked to consider the propriety of the trial court's charge as it relates to the doctrines of assumption of the risk and vicarious employer liability. We will also address the applicability of the jurisdictional immunity found under the Workmen's Compensation Act.

The underlying action was commenced following an accident in which plaintiff, William C. Martin, sustained injuries while loading equipment onto a tractor trailer. The incident occurred on the evening of November 18, 1982 in the parking lot adjacent to the Stanley Theater following a concert by Linda Ronstadt. Mr. Martin and his wife brought suit against numerous parties. In an effort to understand the relationship of these parties and their potential responsibility for the injuries suffered by the plaintiffs, a complete summary of the facts is necessary.

In 1982 singer Linda Ronstadt was on tour bringing her show to various cities. In regard to her performance at the Stanley Theater in Pittsburgh, Pennsylvania, a contract was entered into between DiCeasare-Engler Productions and

[ 380 Pa. Super. Page 531]

Linda Ronstadt by her personal manager Peter Asher. This contract set forth the performer's various needs for the show, which DiCeasare-Engler as the promoter, would provide. Attached to the contract was a rider containing specific requirements for the sound and light systems. In addition to other items, it identified the number of truck loaders and stagehands which would be needed. The details of the rider were authored by Showco, Inc. (Showco), the company responsible for the lighting and sound systems for the Ronstadt tour. The equipment needed to facilitate the lighting and sound was hauled from city to city by Clark Transfer, which had entered into an agreement with Ms. Ronstadt to perform this service.

Prior to the date set for the concert in Pittsburgh, DiCeasare-Engler set out to arrange for stagehands and loaders to be present for the loading and unloading of the trucks which were carrying the equipment for the show. Mr. Robert Recker of Recker Transfer Company (Recker) was contacted by an employee of DiCeasare-Engler and arrangements were made to have a number of men available to handle the loading and unloading tasks. These individuals unloaded the concert equipment without incident on the morning of the show. Some time later that evening the men hired by Recker Transfer Company arrived at the Stanley Theater to begin reloading the equipment onto the tractor trailers.

William Martin was an employee of Recker and was one of the men assigned to work the night of November 18, 1982 as a "loader." Also present that evening was an employee of Showco who instructed the loaders where to place the equipment in the trailers. The tractor trailers used to haul the concert equipment came with a ramp which was typically set in place by a loader. On the evening of the concert the loaders walked up this ramp and loaded the trailer with Showco's lighting and sound equipment. In packing the trailer that evening space was lost and the trailer became filled with boxes which were arranged in columns. To facilitate the packing of the last remaining

[ 380 Pa. Super. Page 532]

    column the ramp was pulled out in such a manner that the lip of the ramp rested on the doorjamb of the trailer. Two or three more boxes were then placed inside the trailer until only one space remained empty at the top right side of the rear of the trailer. There was some dispute between Mr. Recker and an employee of Showco as to whether the box involved in the accident would fit into the remaining space. Mr. Recker left the area and the Showco employee instructed the loaders to place the box into the empty area. The box weighing approximately 200 pounds was then rolled up the ramp where Mr. Martin was standing with his left foot on the doorjamb of the trailer and his right foot on the ramp. As Mr. Martin and another loader proceeded to lift the box and shove it into its space, the ramp left the base of the truck and Mr. Martin fell. He landed on his feet but was later knocked to the ground when his head was struck by the center of the box. Thereafter, Mr. Martin was taken to The Mercy Hospital of Pittsburgh where he was examined and released.

Subsequent to the accident, two separate lawsuits were filed by Mr. Martin and his wife. The first named as the defendant Robert Recker, individually and d/b/a Recker Transfer Company. The second suit was brought against Linda Ronstadt, Peter Asher Management, Inc., Jess S. Morgan and Co., Inc. (Ms. Ronstadt's business manager), DiCeasare/Engler/Stanley Theater Company, Clark Transfer Company, Showco, Inc., and The Mercy Hospital of Pittsburgh. The two actions were consolidated for trial. A jury trial was held after which a verdict was entered in favor of the plaintiffs, Mr. and Mrs. Martin, and against Recker and Showco. The jury found plaintiff to be 30% negligent, Showco 45% negligent and Recker 25% negligent. The jury verdict was molded by the court after which post-trial motions were filed and denied. Appeals filed by Mr. and Mrs. Martin, Showco and Recker have been consolidated for purposes of this appeal.

We begin our review with an examination of the trial court's instructions and conclude that the charge given to

[ 380 Pa. Super. Page 533]

    the jury on causation was adequate. The trial court's decision to refuse Showco's requested jury instruction on the doctrine of assumption of the risk cannot be cited as error in the instant case.

Initially it is appropriate to note that the defense of assumption of the risk has been abolished by statute in certain types of cases. 77 P.S. § 41 provides in relevant part:

In any action brought to recover damages for personal injury to an employe in the course of his employment, or for death resulting from such injury, it shall not be a defense --

(b) That the employe had assumed the risk of the injury The facts indicate that Martin was employed by Recker. As an employer Recker had the statutory duty to obtain insurance to insure the payment of workmen's compensation benefits for those so entitled. Recker neglected to obtain compensation insurance, thus Martin was able to institute a suit for damages at law. Section 501 of the Workmen's Compensation Act provides that whenever "any employer fails to secure the payment of compensation under this act . . . the injured employe or his dependents may proceed either under this act or in a suit for damages at law as provided by article II." 77 P.S. § 501. The reference in § 501 to article II of the Act applies to the above quoted § 41 which abolished the defense of assumption of the risk. Accordingly, Recker as the employer of Martin was not entitled to a charge that Martin assumed the risk of working on the ramp that evening.

To determine whether the provisions of the Workmen's Compensation Act including those abolishing the defense of assumption of the risk apply to the defendant Showco, it must be resolved whether Showco was an employer of Martin. On the one hand Showco seeks to have the jury charged that Martin assumed the risk of his working conditions, however as seen above such a charge would be inappropriate if Martin were an employee of Showco. On

[ 380 Pa. Super. Page 534]

    the other hand Showco also argues in this appeal that the trial court erred when it failed to grant Showco leave to amend its New Matter to plead the workmen's compensation defense on the basis that Showco and Martin enjoyed an employer-employee relationship.*fn1 Showco's attempt to argue in the alternative is not new to this area of the law. Nearly 60 years ago Mr. Justice Kephart wrote about a similar perplexing situation:

This appeal by McDonald presents an oft recurring difficulty. On the one hand we have persons before us, such as Levinson, endeavoring to escape the effect of the Compensation Act so that they will not be compelled to pay compensation or carry insurance, and, on the other hand, as here, when faced with liability at common law, they strive vigorously to come under the sheltering protection of the act. Appellee is now endeavoring to the latter as a statutory employer.

McDonald v. Levinson Steel Co., 302 Pa. 287, 291-292, 153 A. 424 (1930).

In an attempt to resolve the status of the relationship between Showco and Martin we must remain mindful that the question of whether the facts constitute an employment relationship for workmen's compensation purposes is a question of law. English v. Lehigh County Authority, 286 Pa. Super. 312, 428 A.2d 1343, 1348 (1981). For Showco to claim immunity under the Act it must be found to be either an "employer" of Martin as that term is defined in Section 21 of the Workmen's Compensation Act or what has been described as a "statutory employer" under Section 52 of the Act.

Showco's position in the instant action could not be said to be that of a statutory employer. ...


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