PHILADELPHIA – A chemical and ingredient solutions distributor is seeking to dismiss through summary judgment the lawsuit levied against it by a New Jersey truck driver, countering that it is immune from the negligence suit under the Pennsylvania Workers’ Compensation Act.
Christopher Disant of Carteret, N.J. first filed suit in the Philadelphia County Court of Common Pleas on Oct. 9 versus Brenntag North America, Inc. and Brenntag Northeast, both of Reading.
(The action was later removed to the U.S. District Court for the Eastern District of Pennsylvania on Oct. 22.)
“On Dec. 11, 2018, plaintiff Christopher Disant was lawfully about the premise of the job site delivering chemicals to the defendants, utilizing a tanker trailer. Disant, while in the course and scope of his employment with Langer Transport Corporation was granted permission by defendants to access the top of his tanker trailer to close the dome lid,” the suit said.
“While plaintiff was working on the top of the tanker trailer, which has unprotected edges more than four feet from the ground, defendants negligently did not provide, mandate or ensure the plaintiff with a safe means to perform his work, mainly fall protection. While plaintiff was working on the tanker truck, his foot got caught and he fell backwards off the tanker trailer falling to the ground. The impact caused him to suffer serious and permanent injuries and damages.”
Disant alleged his injuries were caused by the negligent acts and omissions of the defendants.
“Disant sustained injuries to his head, right shoulder, back, body and limbs, his bones, cells, nerves, tissues, muscles and functions including, but not limited to acute comminuted fracture of the right coracoid scapular, Hill-Sachs deformity, anterior dislocation of right humerus, rotator cuff tear, full thickness tear of distal subscapularis tendon, derangement of posterior horn of the medial meniscus, chondromalacia of left knee, internal derangement of right knee, medial meniscal tear left knee, mild MCL sprain left knee, medial status post left knee arthroscopy, partial medial meniscectomy, partial synovectomy, status post right shoulder arthroscopy, labral debridement, rotator cuff repair, acromioplasty and bursectomy, thoracic compression fracture, L1 and L5 compression fractures, plantar fascial fibromatosis, and together with a severe shock to his nerves and nervous system,” per the suit.
UPDATE
Attorneys for both of the defendants filed a motion for summary judgment as to all claims on May 12, charging that the Pennsylvania Workers’ Compensation Act would immunize them from suit in this case.
“In this case, there is no dispute as to the material facts. At the time of his incident, plaintiff was in the course and scope of his employment with Langer, completing the delivery of bulk liquid chemicals at BNE’s facility by monitoring and assisting in the unloading of those chemicals from his tanker trailer. His fall occurred after closing the dome lid on top of his trailer, work he was doing in furtherance of unloading the tanker,” the summary judgment motion stated, in part.
“The evidence clearly shows that the transport of bulk liquid chemicals using tanker trucks, including loading and unloading tankers, is an integral and regular part of BNE’s business that BNE conducts on a daily basis. BNE transports bulk liquid chemicals in tanker trucks to and from its facility in Reading, PA, using its own trucks and drivers and third-party carriers, on a daily basis. BNE employees unload tankers of chemical products on a daily basis. BNE employees access the dome lid of tanker trailers while unloading products on a regular basis.”
According to the company, there is no dispute that “Disant’s work in assisting in unloading bulk liquid chemicals from a tanker was work that is the core of BNE’s business, is performed daily by BNE employees and is a regular and recurrent part of BNE’s business.”
The company argues that, under the language of the PWCA, in return for guaranteed wage loss and medical benefits, regardless of the fault of the employee or the lack of negligence of the employer, the employee gives up the right to sue the employer under the common law for damages suffered from a work-related injury.
Brenntag’s counsel believes the plaintiff’s incident is just such an injury.
“Because plaintiff’s incident occurred when he was performing work, pursuant to Langer’s contract for delivery services with BNE, and that this work was a regular and recurrent part of BNE’s business, BNE is plaintiff’s statutory employer under Section 302(a) of the PWCA. Accordingly, BNE is immune from suit in this case under the PWCA and must be dismissed from this action,” the summary judgment motion stated.
For a lone count of negligence, the plaintiff is seeking damages, jointly and/or severally, for a sum in excess of $50,000, plus delay damages, costs, interest and all other damages permitted by law.
The plaintiff is represented by Carin A. O’Donnell and Ryan Kilmer of Stark & Stark, in Yardley.
The defendants are represented by William Lawrence Thrall III and Jeffrey Colin Schwartz of Post & Schell, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-05281
Philadelphia County Court of Common Pleas case 201000603
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com