PITTSBURGH – The owner of a salvage yard wrapped up in a premises liability lawsuit from a man allegedly crushed by a 1,200-pound mechanical metal gate has been denied summary judgment in an Allegheny County court.
William Everetts of Emlenton first filed suit in the Allegheny County Court of Common Pleas on Jan. 12, 2018, versus Kennedy Diversified and John Kennedy, both of Slippery Rock.
On Jan. 19, 2016, according to the complaint, Everetts was at the yard to repair and install metal fencing around the property, in particular, a fence post that Kennedy had hit and damaged with a vehicle.
While there, Kennedy was said to have demanded that Everetts and a co-worker, Richard Shoaff, remove an 8-foot tall, 35-foot long and approximately 1,200-pound free-standing metal gate, which can be moved along a track – and which was not the intended purpose of the plaintiff’s professional visit.
“Although plaintiff did not want to remove the gate, he suggested that if it had to be removed, then it should be secured to defendants’ pay loader machine in order to stabilize it and ensure it did not fail,” the suit stated.
“Kennedy rejected that idea, refused to allow plaintiff to execute that plan, and insisted the gate be taken off the track and held in position by hand. Upon removing the gate, the plaintiff was positioned in the middle of the gate with his co-worker on one end and an employee of defendants on the other. Shortly after removing it, the defendants’ employee failed to maintain a hold of the gate, and the gate violently fell directly onto plaintiff, resulting in serious injuries.”
Everetts maintained the defendants were negligent in refusing to allow him and his co-worker to remove the gate in their preferred, safer way, in demanding they hold up the gate themselves and providing a premises that was unsafe for use, among other charges.
As a result, the plaintiff allegedly suffered fractures of the left tibia and fibula, requiring open reduction and internal fixation surgery, severe left leg soft tissue damage, left leg nerve damage, persistent pain and swelling, trouble sleeping due to pain, plus bruises, contusions and other injuries.
On March 8, 2019, counsel for the defendants filed a motion for such a protective order, with respect to Kennedy’s deposition scheduled for March 15 last year at the firm of plaintiff counsel, Friday & Cox in Pittsburgh.
Although defense counsel argued there was no rule mandating parties needing to be deposed in Allegheny County and requested Kennedy be deposed in his hometown of Slippery Rock, plaintiff counsel wanted Kennedy’s deposition to take place in Pittsburgh.
“Mr. Kennedy has recently recovered from open heart surgery, does not live in Allegheny County and has made the reasonable request that he be deposed in Butler County. In light of Mr. Kennedy’s surgery and his residence in Butler County, requiring him to travel to Pittsburgh is an unreasonable and unnecessary burden, where his deposition can easily take place in a location convenient to Mr. Kennedy, and/or by way of telephone,” the motion read, in part.
On March 11, 2019, Allegheny County Court of Common Pleas Judge Robert J. Colville denied the motion for a protective order.
Nearly one year later, on Feb. 27, counsel for the defendants filed the summary judgment motion, arguing that Everetts’ designation as an independent, sub-contractor relieved the defendants of liability for his injuries.
“Generally, under Pennsylvania law, a party who hires an independent contractor is generally exempt from liability for injuries sustained by the contractor’s employees. Thus, a property owner has no duty to warn the contractor or its employees of conditions that are at least as obvious to the contractor and its employees as they are to the landowner,” according to the defendants’ motion.
“Responsibility for protection and liability for negligence, therefore, are placed on the contractor and its employees. Plaintiff was an independent contractor engaged…to complete work to a fence, fence posts and remove a gate at the Kennedy Diversified property. Neither Kennedy Diversified nor John Kennedy retained control over how plaintiff and his co-worker completed the work that [they were] hired to complete.”
However, on July 14, Allegheny County Court of Common Pleas Judge Patrick Connelly denied the motion for summary judgment.
The plaintiff is represented by Jesse A. Drumm of Friday & Cox.
The defendant is represented by Tara L. Maczuzak of DiBella Geer McAllister & Best, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-18-000607
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com