PITTSBURGH – U.S. Steel has objected to a negligence lawsuit which argues that it and a number of other defendants were liable for injuries the husband-plaintiff suffered when he was sucked into a pressurized fan system and nearly killed.
Joshua Keller and Vanessa Keller of McDonald first filed suit in the Allegheny County Court of Common Pleas on Dec. 5 versus U.S. Steel Corporation of Pittsburgh, The Edgar Thompson Steel Co. Ltd. of Braddock, BrandSafway Industries, LLC, BrandSafway LDAR, LLC, BrandSafway, LLC, BrandSafway Services, LLC and BrandSafway Solutions, LLC, all of Kennesaw, Ga.
“On Oct. 31, 2022, Joshua Keller was lawfully performing renovation work at the Edgar Thomson Steel Plant located in Braddock, Pennsylvania. At all times relevant hereto, Mr. Keller was lawfully on the premises of the Project as a business invitee, to whom the defendants owed the highest duty of care. On Oct. 31, 2022, Mr. Keller, while acting within the course and scope of his employment, was assisting with construction work atop the roof of the ‘flooded elbow.’ Specifically, Mr. Keller was repairing the roof of the flooded elbow. The roof on which Mr. Keller was standing was over 6 feet off the ground. The roof of the flooded elbow was damaged with an open hole that led directly to the pressurized fan system, a part of the gas cleaning system,” the suit alleged.
“The flooded elbow was lined with scaffolding and planking, which were designed, installed, inspected, and maintained by the US Steel defendants and/or the BrandSafway defendants. The U.S. Steel defendants failed to de-energize or otherwise make safe the fan system and gas cleaning system. The U.S. Steel defendants permitted Mr. Keller and other workers to perform their jobs near the open hole in the flooded elbow while the fan system remained energized. The U.S. Steel defendants and the BrandSafway defendants failed to make safe the flooded elbow and the hole in its roof, exposing workers like Mr. Keller to a fall risk and the risk of the fan’s pressure system. The U.S. Steel defendants and the BrandSafway defendants failed to provide Mr. Keller with a personal fall arrest system and/or failed to ensure workers were equipped with appropriate fall protection, including personal fall arrest systems.”
The suit added that while standing on the scaffolding to perform his work duties, suddenly and without any warning to Mr. Keller, the pressurized fan system was turned on by the defendants, leading the scaffolding and planking Mr. Keller was standing on to be sucked into the flood elbow and fan systems.
“Mr. Keller was sucked off the platform and into the fan system. Mr. Keller was forced to hold on for dear life while refractory and other materials pelted him for minutes on end – had he let go, he would have been ripped apart by the fan system. As a result of this accident, Mr. Keller suffered catastrophic, permanent, debilitating and life-altering injuries,” the suit stated.
“As a direct and proximate result of the carelessness, negligence, gross negligence, recklessness and other liability-producing conduct of the defendants, plaintiff was forced to suffer serious, disabling and permanent injuries, including but not limited to pelvic fractures, spinal fractures, rib fractures, a punctured lung, a heart contusion, a head injury, and other orthopedic, neurological and psychological injuries, the full extent of which have yet to be determined.”
The BrandSafway defendants filed preliminary objections in the case on Dec. 23, finding that more than one of the plaintiffs’ claims were not sufficient as legal pleadings.
“Here, plaintiffs’ complaint is insufficiently specific, and must be dismissed, because it omits a fact that is essential to their legal entitlement to recover; specifically, plaintiffs’ complaint pled that plaintiff Joshua Keller was ‘acting within the course and scope of his employment’, but failed to state the actual identity of plaintiff Joshua Keller’s employer,” according to the objections, in part.
“Their allegation that plaintiff Joshua Keller was within the course and scope of employment does not sufficiently enable the BrandSafway defendants to prepare their affirmative defenses to plaintiffs’ allegations; most importantly, they have no way of knowing whether they are entitled to the defense that plaintiffs’ claims directed to them are preempted by the exclusivity provision of the Pennsylvania Workers’ Compensation Act.”
The BrandSafway defendants contend that without knowing the scope of the plaintiff’s employment and representation to his employer, their ability to fully defend the case is prejudiced.
The objections further argued that the plaintiffs did not plead their punitive damages claim properly in showing acts beyond simple negligence and did not fully outline their additional claims of liability-producing conducts on the defendants’ parts.
On Jan. 12, counsel for all parties agreed through mutual stipulation to remove the claim for punitive damages.
“IT is hereby stipulated by and between plaintiffs and defendants BrandSafway Industries, LLC, BrandSafway LDAR, LLC, BrandSafway, LLC, BrandSafway Services, LLC, and BrandSafway Solutions, LLC, that any and all claims for punitive damages as well as ‘recklessness’ in plaintiffs’ complaint as to the BrandSafway defendants are hereby stricken without prejudice. The BrandSafway defendants agree that upon filing of this Stipulation they will withdraw their preliminary objections to plaintiffs’ complaint and file an answer to plaintiffs’ complaint within 30 days,” the stipulation read.
Simultaneously, the BrandSafway defendants withdrew their preliminary objections on the same day.
UPDATE
After a motion to send the case to the Commerce and Complex Litigation Center was filed on Jan. 24, U.S. Steel filed preliminary objections in the matter on Feb. 1.
“Plaintiffs’ complaint is insufficiently specific because it omits an essential fact to the case – the identity of Mr. Keller’s employer. Plaintiffs’ general averment that Mr. Keller was ‘acting within the course and scope of his employment,’ without actually identifying his employer, prohibits U.S. Steel from forming its defenses regarding the duty care it may have owed to Mr. Keller. Additionally, without knowing Mr. Keller’s employer, U.S. Steel cannot determine whether it is entitled to the defense that plaintiffs’ claims are pre-empted by the exclusivity provision of the Pennsylvania Worker’s Compensation Act,” the objections stated, in part.
“Plaintiffs classify U.S. Steel’s conduct as merely negligent and then use that same conduct to allege a claim for punitive damages, which is prohibited under Pennsylvania law. Even taking plaintiffs’ averments as true, they still do not constitute anything more than mere negligence. Therefore, U.S. Steel respectfully requests that this Honorable Court sustain its preliminary objection pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4) as to plaintiffs’ claims for punitive damages in the ad damnum clauses of Counts I and III of the complaint.”
U.S. Steel further contends that while the plaintiffs’ complaint “vaguely alleges that U.S. Steel’s actions were careless, grossly negligent, reckless and otherwise liability-producing, these allegations are insufficiently specific and fail to comply with Rule 1019(a) requirements.”
“Moreover, plaintiffs’ claims of ‘other-liability producing conduct’ used throughout the complaint, should be stricken in accordance with Connor v. Allegheny General Hospital, wherein the Supreme Court of Pennsylvania recognized the appropriateness of a motion to strike based on such a lack of specificity. Similar to the defendants in Connor, U.S. Steel will be prejudiced if required to defend against limitless possible theories of negligence. Therefore, plaintiffs’ allegations that U.S. Steel engaged in ‘other liability-producing conduct should be stricken from the complaint,” the objections continued.
“The averments of Paragraphs 41 and 52 of plaintiffs’ complaint are wholly irrelevant and immaterial to any of the issues of this action, being entirely extraneous to plaintiffs’ cause of action and should be stricken as having no bearing on and as tending neither to prove nor disprove any issue in this case. Therefore, Paragraphs 41 and 52 of the complaint should be stricken as scandalous and impertinent matter.”
For multiple counts of negligence and loss of consortium, the plaintiffs are seeking damages, jointly and/or severally, in excess of the jurisdictional threshold, exclusive of interest, costs and delay damages pursuant to Pennsylvania Rules of Civil Procedure Section 238.
The plaintiffs are represented Robert J. Mongeluzzi, Jeffrey P. Goodman and Aidan B. Carickhoff of Saltz Mongeluzzi & Bendesky, in Philadelphia.
The defendants are represented by J. Lawton Johnston and Scott D. Clements of Dickie McCamey & Chilcote in Pittsburgh, plus Elizabeth A. Chalik of Kennedys LLP, also in Philadelphia.
Allegheny County Court of Common Pleas case GD-22-014863
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com