The state Supreme Court has granted allocatur in a case that promises to have lasting effects on Pennsylvania’s statutory employer law, following a divided state Superior Court’s decision affirming a $1.5 million judgment entered in favor of an injured worker who was pinned under a scissor lift while repairing the ceiling of a Bucks County church.
In Patton v. Worthington Associates, a split three-judge panel extended tort liability to Worthington Associates Inc., a general contractor, declining to endorse the contractor’s theory that the controlling question — whether the injured man was Worthington’s "statutory employee" or an "independent contractor" — should have never gone to the trial jury.
According to Judge Sallie Updyke Mundy’s majority opinion, the trial court enlisted a Superior Court decision — Lascio v. Belcher Roofing — in requiring a "prelude" or "screening question" for the jury on the statutory employee issue before conducting the decades-old state Supreme Court McDonald test. Mundy, joined by Judge Kate Ford Elliott, affirmed the Bucks County Court of Common Pleas, which had denied Worthington on a post-trial motion for judgment notwithstanding the verdict.
In a one-page order April 26, the justices agreed to hear the case, leaving the issue as stated by Worthington intact.
Worthington had asked the high court to consider whether the Superior Court’s majority had "sub silentio nullified the statutory employer doctrine and effectively overruled this court’s decision in McDonald v. Levinson Steel … by grafting a fact question onto the McDonald analysis that can never be answered in a way that allows the statutory employer doctrine to apply."
In a six-page dissenting opinion, Judge John T. Bender noted that, had the jury decided plaintiff Earl Patton was not an independent contractor, Worthington would have otherwise met the test set forth in McDonald and the contractor would have then prevailed.
Mundy, however, said the question was not only properly before the jury, but was also required in order to determine the test’s applicability. Employers in Pennsylvania are afforded a statutory tort immunity defense under the state Workers’ Compensation Act, but not without surviving McDonald’s five prongs.
In Lascio, according to Mundy, the jury returned a verdict for an injured employee of a subcontractor who had sued the general contractor for whom he was working. Afterward, finding the contractor was the man’s statutory employer, the Lascio trial court granted the contractor a judgment notwithstanding the verdict, according to Mundy.
The Superior Court remanded the case though, because, as Mundy put it, the trial court employed McDonald "without also analyzing whether [the plaintiff's] employer was a subcontractor or an independent contractor."
Worthington argued Lascio was distinguishable because in the underlying contract there was an "independent contractor clause," which is not the case in Patton.
But Mundy said the court must look at the entire contract in determining its legal effect, not just the names the parties used to characterize their relationship.
Worthington also argued that the jury instruction during trial was insufficient in properly tasking the jury with determining whether Patton was an employee or independent contractor. In its brief, Worthington argued the trial court denied the defense’s proposed change that would have more thoroughly defined statutory employer and independent contractor as well as the elements of the McDonald test.
Because the jury’s task was to decide whether Patton was an independent contractor, Mundy said the court did not need to instruct jurors about McDonald, itself.
Mundy’s 29-page opinion also spelled out the legislative definitions for "employer," "employee" and "contractor," a third definition Mundy called "crucial in conjunction with the statutory employer immunity defense." Coupled with a host of appellate decisions, Mundy concluded the relevant literature pointed to a "master-servant relationship" as being a prerequisite to surviving McDonald. Additionally, because an independent contractor can never be a statutory employee, she said, the elements of McDonald cannot be met if a contractor is an independent contractor.
The plaintiff, Earl Patton, who filed suit with his wife, Sharon Patton, owns and acts as an employee of Patton Construction Inc. Worthington hired Patton Construction to do carpentry work on a church Worthington had been contracted to repair. According to the opinion, Earl Patton was pinned under the scissor lift after he inadvertently drove it into a hole, causing it to tip, while he was repairing the church’s ceiling. He fell 14 feet and sustained serious injuries, including fractured vertebrae. The couple filed suit alleging negligence in failing to provide a safe workplace and for failing to cover the holes.
Worthington filed a motion for summary judgment, asserting it was immune as the statutory employer of Patton under the Workers’ Compensation Act, which the trial court denied.
According to Mundy, the jury found Worthington’s negligence was a factual cause of Patton’s harm and that Patton, himself, was 20 percent contributorily negligent. Earl Patton was awarded $1 million in damages and Sharon Patton claimed $500,000. The trial court denied Worthington’s post-trial motions and entered a $1.5 million judgment in Patton’s favor.
In a third argument on appeal to the Superior Court, Worthington contended that because the hole Patton drove into was "open and obvious as a matter of law" and because Patton had admitted to seeing holes in the floor before the day of the accident, Worthington was entitled to a judgment notwithstanding the verdict.
At a minimum, Worthington argued in a brief, it was erroneous for the court to not charge the jury on the issue and warranted a new trial.
Mundy adopted the trial court’s analysis as to this issue, noting that the court declined to instruct the jury as to that issue as Worthington requested. The jury was charged on contributory negligence, for which it found Patton 20 percent negligent for his injuries.
According to the majority opinion, quoting the trial court’s factual history, Patton covered the holes at some point before the day of the accident, but they were uncovered on that day.
Worthington also failed to persuade the court that the $1.5 million verdict was excessive.
Carin O’Donnell of Newtown, Pa., firm Stark & Stark is representing Earl Patton and his wife.
John J. Hare of Marshall Dennehey Warner Coleman & Goggin is representing Worthington.