Silver v. Waco Scaffolding Co.

16 Pa. D. & C.4th 41, 1992 Pa. Dist. & Cnty. Dec. LEXIS 174
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedAugust 7, 1992
Docketno. 3337
StatusPublished

This text of 16 Pa. D. & C.4th 41 (Silver v. Waco Scaffolding Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Silver v. Waco Scaffolding Co., 16 Pa. D. & C.4th 41, 1992 Pa. Dist. & Cnty. Dec. LEXIS 174 (Pa. Super. Ct. 1992).

Opinion

KLEIN,/.,

Richard Silver was working as a glazier on a scaffold in March of 1985. The scaffold had been on the job for about two months and had been used by the iron workers and the glaziers. A hook that was part of the scaffolding above Silver fell to the ground. Silver ducked the falling hook, lost his balance, and fell from the scaffold, badly injuring his knee.

The hooks are on the end of the wooden planks and attach the planks to the framework. A co-worker had retrieved the hook and said it had a jagged edge. Subsequently, the hook was lost. The plank itself was not damaged.

The plaintiff’s expert, Mr. Clauser, opined that the most likely cause of the hook’s fracture was that it was bent when the scaffold fell at some point. He stated that [42]*42it should have been replaced, but instead it was straightened. Therefore, the hook had a weakness which caused it to fail later, even though it looked normal.

Mr. Clauser also said that he believed it was more likely to be in this condition when first installed on the job than to have been damaged in the two months it was on the job. He does not cite any scientific evidence to support this conclusion. Therefore, he is merely speculating. Speculation by an expert has no more probative value than speculation by a lay person.

All Mr. Clauser noted was that there was testimony that the scaffold in general looked “worn” and there was dirt rather than cement under the scaffold. However, the scaffold had been on the job for two months prior to the accident. Iron workers had been using the scaffold before the glaziers. There is no way to tell when the scaffold was dropped and the hook straightened, or who did it. While it could have happened prior to this job, it could just as easily have happened after the scaffold was supplied by Waco. There is no way to tell when it was weakened. On this issue, the expert did not add anything beyond what a lay witness could surmise.

Accordingly, there is no way that the plaintiff can show that it is more likely than not that the scaffold was bent and straightened before it was delivered to the job site rather than after it was placed on the job site. For this reason, the summary judgment motion was properly granted.

[43]*43INADEQUATE FACTUAL BASIS

Circumstantial evidence that workers were careful with leased equipment while on construction site and that some of it was delivered in poor working condition does not comprise an adequate factual basis for expert opinion that equipment was defective when delivered by defendant Waco.

An expert witness may render an opinion on any subject which is “so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average laymen.” Camp Construction Corp. v. Lumber Products Co., 311 Pa. Super. 381, 387, 457 A.2d 937, 940 (1983), quoting Commonwealth ex rel. M.B. v. L.D.B., 295 Pa. Super. 1, 10-11, 440 A.2d 1192, 1197 (1982).

The issue of when the piece of scaffolding was dropped and straightened is not the type of complex issue that requires expert testimony given the available evidence. The expert bases his opinion that the hook’s defect originated prior to delivery on testimony that the equipment delivered by WACO was often in poor working condition and the glaziers who used the equipment were, careful not to damage it. Whether á hook was damaged before or after delivery is not a technical question. It is one of when a human act occurred. That issue is not beyond the ken of the average laymen.

Analyzing the testimony in this case does not require a scientific background in physical engineering or any special knowledge. Allowing an expert to render an opinion on a question where special knowledge is not required would unnecessarily mislead a jury. Where the opinion [44]*44of an expert goes to an ultimate issue of fact, it must be excluded where it would confuse, mislead or prejudice the jury. Camp Construction Corp. v. Lumber Products Co., 311 Pa. Super. 381, 387, 457 A.2d 937, 940 (1983), quoting Commonwealth ex rel. M.B. v. L.D.B., 195 Pa. Super 1, 10-11, 440 A.2d 1192, 1197 (1982). This is especially so where expert testimony is the sole or basic factor influencing the jury’s decision on the ultimate fact issue. See Bessemer Stores v. Reed Shaw Stenhouse, 344 Pa. Super. 218, 496 A.2d 762 (1985).

Expert testimony is incompetent if it lacks an adequate basis in fact. The expert is only allowed to assume the truth of testimony already in evidence. Hussey v. May Department Stores Inc., 238 Pa. Super. 431, 435, 357 A.2d 635, 637 (1976). While an expert’s opinion need not be based on an absolute certainty, an opinion based on mere possibilities is not competent evidence. Niggel v. Sears, Roebuck & Co., 219 Pa. Super. 353, 281 A.2d 718 (1971). This means that expert testimony cannot be based solely upon conjecture or surmise. An expert must do more than guess. His or her assumptions must be based upon such facts as the jury would be warranted in finding from the evidence. Houston v. Canon Bowl Inc., 443 Pa. 383, 385, 278 A.2d 908, 910 (1971).

Even if the expert assumes the truth of all testimony in evidence, his opinion would still be a guess. The expert did not make a personal observation of the incident scaffolding or hook, because they were lost, nor did he visit the work site where the accident occurred. Thus, the expert bases his opinion on the testimony of site workers that some of the scaffolding was delivered in poor [45]*45condition, and that the workers were careful with it. This is not an adequate foundation for such an opinion; there is no scientific correlation between these statements and the time the hook was damaged.

In addition, there is no evidence on the history of the scaffolding or hook in question. No one knows how it was used or handled, or whether or not it had been dropped or damaged in any way. The foremen on the site admitted that accidents happen, and that scaffolding is “unintentionally” dropped. So it is possible that the hook was damaged at the site. There simply is no way to tell when and where the accident occurred based on the sketchy details.

INSUFFICIENT PROOF

Although (A) some scaffolding on the construction site was worn and (B) the surface under the scaffolding was dirt, this is not sufficient to prove that the hook was damaged before delivery to the job site.

Plaintiff’s expert concluded that the hook was damaged before it came to the job site, not during the two months on the site by the iron workers or glaziers using it. He primarily based his conclusion on two facts.

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Related

Camp Construction Corp. v. Lumber Products Co.
457 A.2d 937 (Superior Court of Pennsylvania, 1983)
Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc.
496 A.2d 762 (Supreme Court of Pennsylvania, 1985)
Niggel v. Sears, Roebuck and Co.
281 A.2d 718 (Superior Court of Pennsylvania, 1971)
Swartz v. General Electric Co.
474 A.2d 1172 (Supreme Court of Pennsylvania, 1984)
Lanza v. Poretti
537 F. Supp. 777 (E.D. Pennsylvania, 1982)
Houston v. Canon Bowl, Inc.
278 A.2d 908 (Supreme Court of Pennsylvania, 1971)
Kuisis v. Baldwin-Lima-Hamilton Corp.
319 A.2d 914 (Supreme Court of Pennsylvania, 1974)
Pharo Motor Vehicle Operator License Case
169 A.2d 787 (Superior Court of Pennsylvania, 1961)
Hussey v. May Department Stores, Inc.
357 A.2d 635 (Superior Court of Pennsylvania, 1976)
Commonwealth ex rel. M.B., J.B., & S.B. v. L. D. B.
440 A.2d 1192 (Superior Court of Pennsylvania, 1982)

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Bluebook (online)
16 Pa. D. & C.4th 41, 1992 Pa. Dist. & Cnty. Dec. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silver-v-waco-scaffolding-co-pactcomplphilad-1992.