Kelly v. Young Galvanizing, Inc.

41 Pa. D. & C.5th 240
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedSeptember 16, 2014
DocketNo. 10480 of 2012, C.A.
StatusPublished

This text of 41 Pa. D. & C.5th 240 (Kelly v. Young Galvanizing, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. Young Galvanizing, Inc., 41 Pa. D. & C.5th 240 (Pa. Super. Ct. 2014).

Opinion

MOTTO, P.J.,

Before the court for disposition is the motion for summary judgment filed on behalf of defendant Young Galvanizing, Inc. (hereinafter “Young”), which argues that Young is not vicariously liable for plaintiff’s injuries because plaintiff is barred from recovery pursuant to the doctrine of assumption of the risk.

This action arises from a fall from a tractor trailer which occurred when plaintiff, Samuel J. Kelly, being concerned with the stability of a load his trailer, climbed onto the back portion of his trailer to inspect and secure the load. Plaintiff has been employed as a truck driver for 25 years and worked under a leasing contract with Mercer Trucking from 2000 up to the date of the accident. On November 16, 2010, at about 1:00 p.m., plaintiff drove his tractor trailer to the business premises of Young to [242]*242pick up a load consisting of wooden posts and metal guardrails. According to the complaint, when plaintiff arrived at Young’s business premises he briefly spoke with the shipping supervisor for Young to verify the load he was to pick up. The shipping supervisor for Young directed plaintiff to drive his truck to the loading area and to wait inside his truck while the load of guardrails was loaded onto his truck. Two employees of Young came toward plaintiff’s truck with a forklift and loaded the guardrails onto the trailer. Subsequently, plaintiff exited his truck and walked toward the trailer to observe the loaded guardrails. Upon observing the load from where he stood on the ground next to the trailer, plaintiff became concerned with the stability of a curved guardrail section which was 12 feet in length and which was placed on the top of the load on the trailer. Plaintiff first walked toward the section of the trailer closest to the cabin of his truck and threw a strap over the curved guardrail in an attempt to secure it. Upon throwing the strap over the curved guardrail, plaintiff observed that it rocked back and forth. At that point, plaintiff observed that the curved section of the guardrail was unstable so he climbed onto the back side of the trailer to further observe and secure the load. After plaintiff climbed onto the trailer, he walked along a one and one half foot section on the left side of the trailer towards the front until he reached the curved guardrail which gave him cause for concern. Plaintiff noticed that the curved guardrail was not banded to the rest of the load and confirmed that the load was not stable. In an attempt to secure the load, plaintiff climbed the load and placed his hands along the guardrails so that he could get a closer view of the curved guardrail to confirm that it was unstable and not banded to the rest of the load. Upon touching the curved guardrail with his hand it pivoted and impacted the plaintiff, which caused him to fall off the trailer. As a [243]*243result of the guardrail pivoting, plaintiff fell backwards off the trailer onto his back on the ground and hit his head on a pallet of steel plates located near the trailer. The plaintiff suffered injuries as a result of his fall.

On June 6, 2012 plaintiff Samuel J. Kelly and his wife, Rhonda Kelly, filed a two count complaint against defendant Young, alleging negligence-vicarious liability (Count I) and a claim for loss of consortium (Count II). In the complaint, plaintiff contends his injures are a direct and proximate result of the negligence and carelessness of Young’s employees in loading the metal guardrails onto plaintiff’s trailer in an improper fashion.

Young has now filed this motion for summary judgment arguing that it cannot be held liable under a theory of vicarious liability because plaintiff knowingly and voluntarily assumed the specific risk of his own injuries and there was no recognizable duty owed to plaintiff by Young; therefore, plaintiff is barred from recovery against Young pursuant to the doctrine of assumption of the risk.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2.

[244]*244Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando Erie Ceramic Art Co., 764 A.2d 59, 61 (Pa. Super. 2000)(citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)). A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block, 761 A.2d 1115 (Pa. Super. 2001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment [245]*245may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992).

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Bluebook (online)
41 Pa. D. & C.5th 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-young-galvanizing-inc-pactcompllawren-2014.