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Edward C. Mcguire and Debbie Mcguire v. United States of America

January 19, 2011

EDWARD C. MCGUIRE AND DEBBIE MCGUIRE, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: (judge Caputo)

MEMORANDUM

This case was tried before me without a jury. It presents the issue of who is responsible for injuries suffered by the plaintiff, Edward McGuire, when he off loaded an ERC (a container on wheels) which was full of mail and weighed approximately 800 pounds.

On November 27, 2006, Mr. McGuire, an employee of Nicholas Trucking, a contract mail transporter, went from the Scranton, Pennsylvania post office to deliver mail to the Lake Ariel post office. Upon his arrival, he backed his trailer up to the loading dock. At the dock, there is a metal plate that provides a level bridge from the back of the trailer onto the loading dock over the space between the loading dock and the back of the trailer. The plate was raised and placed into position by a metal hook which the driver of the delivery truck manned. When the plate was not raised, there was a space between the truck and the loading dock of some 4 to 8 inches. On the morning of November 27, 2006, at approximately 4:30 a.m., Mr. McGuire backed his trailer up to the loading dock but was unable to place the plate between the trailer and the dock because the hook which was normally against the wall next to the loading dock was missing. Mr. McGuire off loaded the ERCs over the gap between the truck and the loading dock without incident. Mr. McGuire at the time was 6 feet 8 inches tall and weighed 300 pounds. Later in the day, Mr. McGuire told a postal employee at the Lake Ariel post office that the hook was not there, and that a hook was needed.

The next day, November 28, 2006, at approximately 4:30 a.m., Mr. McGuire again arrived at the Lake Ariel post office loading dock to deliver ERCs with mail, only to discover again that there was no hook to raise the plate. Mr. McGuire decided to off load as he had the day before and successfully off loaded the first ERC. While he was off loading the second ERC weighing about 800 pounds, his foot slipped into the gap between the truck and the dock. The ERC rolled forward and Mr. McGuire felt pain in his back. He pushed the ERC back into the trailer, strapped it and closed the door. He called his employer's dispatcher and reported that he was injured. He was directed to continue to his other stops and deliver mail, which he did. The dispatcher also told him to return to Lake Ariel, ask for help and deliver the remaining ERCs. He did so, and enlisted the assistance of John Sepelyak, a Lake Ariel postal employee. There was still no hook, so they off loaded the ERCs from a position where the back of the trailer was higher than the loading dock.

John Sepelyak also testified that he recalls a driver informing him that a hook was missing and the he asked the Scranton post office to send one to Lake Ariel. He could neither confirm nor deny that it was Mr. McGuire who informed him of the missing hook, or that it was at or about the time of this incident.

Mr. McGuire testified that he attempted to off load in the manner he did because he had successfully done so the day before he was injured and because his job was to deliver the mail and he did not want to be fired for failing to do so.

Mr. McGuire's injuries consist of back pain, for which the company doctor prescribed physical therapy three times a week. Physical therapy lasted almost a year. He also received pain medication for his back pain. In addition, Mr. McGuire had ankle and foot pain. He developed plantar fasciitis for which he received an injection which ultimately eliminated the need for surgery. His back improved to the point where he was advised by Dr. Albert Janerich, who was Board Certified in Physical Medicine and Rehabilitation, that he could return to work after June 26, 2008. Dr. Janerich testified that Mr. McGuire may have been able to return to work prior to June 26, 2008, but it was Mr. McGuire who telephoned Dr. Janerich and advised Dr. Janerich that the felt he was ready to return to work. Dr. Janerich did not treat Mr. McGuire after August, 2007.

Both Drs. Janerich and Askin, a Board Certified Orthopedic Surgeon, agreed that the injuries suffered by Plaintiff as a result of the incident on November 28, 2006 were aggravation to the lumbar spine and an ankle sprain. Dr. Janerich also opined that Mr. McGuire suffered a sprain to the lumbar spine.

Mr. McGuire suffered severe injuries to his back, legs and pelvis on September 30, 2008 when he was crushed between a trailer and a loading dock. This is significant because he cannot distinguish thereafter between pain suffered beginning November 28, 2006 and pain resulting from the September 30, 2008 event.

It does seem fair to conclude that Mr. McGuire did suffer back pain from November 28, 2006 to some time after August, 2007 and June 26, 2008. He also suffered from ankle and foot pain for varying periods during this same time frame.

In addition to the injuries, consequent pain and inability to work, Mr. McGuire was unable to do many of the things in life he enjoyed doing. For a year, he was unable to hike, drive his quad, could not go on quad trips with his son, and collect baseball cards. The latter was unable to do because it required sitting in front of the computer on e-Bay® for protracted periods of time, which he was unable to do because of the pain. In addition, he was unable to take care of his lawn, remove snow or perform other small repairs and maintenance to his home. Because of his pain and depression, intimacy with his spouse suffered.

On the issue of the amount of loss due to the inability to work, Mr. McGuire earned $21.50 per hour and claims 92 weeks or $94,944.00. He had medical bills of $21,454.54.

The legal analysis applicable to the above circumstances implicates the law of landowner liability to a business invitee and the law of negligence.

Defendant urges assumption of risk on the part of Mr. McGuire as its defense in this case. "In order to prevail on assumption of risk, the defendant must establish both the 'awareness of the risk' prong and the "voluntariness' prong." Staub v. Toy Factory, Inc., 749 A.2d 522, 529 (Pa. Super. 2000). "A plaintiff will not be precluded from recovering except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. . ." Bellman v. Giuntoli, 761 A.2d 566, 570 (Pa. Super. 2000) (citing Struble v. Valley Forge Military Academy, 665 A.2d 4 (Pa. Super. 1995)). Here, it is my view that the danger was obvious and understood by Mr. McGuire. Hence, he satisfies the "awareness prong" noted above.

Because this incident occurred as a result of Mr. McGuire's employment by Nicholas Trucking, a carrier of mail under contract with the United States Postal Service, it is appropriate to consider the Pennsylvania law in the employment context. It seems clear where the employment, of necessity and nature, involves inherent risk or danger, and further that there is no reasonable alternative to dealing with the risk, the plaintiff's action in proceeding in the face of the risk, is not voluntary. Staub at 529-530. See also, § 496E Restatement of Torts.

Here, Mr. McGuire's job required that he deliver the mail to the Lake Ariel Post Office. While I find that he was aware of the obvious danger presented by the inability to deploy the plate, because this was employment activity, he does not meet the voluntariness prong. Therefore, assumption of the risk is not available.

Reviewing the facts through the lens of negligence, it is clear the Postal Service was negligent in not securing a hook after having been told it was missing by Mr. McGuire the day before the accident. However, Mr. McGuire was negligent as well in attempting to move the 800 pound ERC over a 6 to 8 inch gap, knowing that it was not the permissible method of unloading. In my view, Mr. McGuire's negligence did not exceed fifty percent, but rather is weighted at thirty percent. The Postal Service's negligence is weighted at seventy percent.

Therefore, Mr. McGuire prevails on his claim.

Consistent with the foregoing analyses, I make the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. On November 27 and 28, 2006, Mr. McGuire was working as an employee for ...


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