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Gillingham v Consol Energy, Inc.

Case No. 968 WDA 2011 (PA Superior Ct., Jun. 27, 2012)

In these consolidated appeals, Consol Energy, Inc., (“Consol”) raises challenges to various rulings made during the course of this personal injury action as well as to the jury award in favor of Appellees herein, David and Debra Gillingham and Clifford and Pamela Decker. We affirm.

We set forth a brief factual and procedural recitation before addressing the issues raised in this appeal. On June 12, 2007, Mr. Gillingham and Mr. Decker were working at Building No. 19 at the Consol facility in South Park, Pennsylvania, when they exited the second floor of the concrete building by using an exterior metal stairway. As they started to descend, the steps separated from the building due to the disintegration of rusty bolts that secured the staircase to the structure. The two men fell thirteen feet and sustained bodily injuries that we outline in more detail, infra.

The Deckers and Gillinghams instituted separate civil actions against Consol to recover damages caused by the injuries suffered by the two men. The two actions were consolidated for purposes of trial. The jury awarded Mr. Gillingham $1,877,000, Mrs. Gillingham $923,000, Mr. Decker $4,543,000, and Mrs. Decker $457,000. Consol filed a motion for post-trial relief, the motion was denied, and these appeals followed entry of judgment on the verdict.
 

 

Judge(s): Mary Jane Bowes
Jurisdiction: Pennsylvania Superior Court
Related Categories: Damages , Torts
 
Court of Appeals Judge(s)
Mary Bowes
Judith Olson
William Platt

 

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sexual relations, and mr. gillingham cannot perform significant household jurisprudence was antagonistic to a blanket exculpation of liability and that q. what is that? the injuries are temporary or permanent, the duration and course in coal preparation at penn state university because hazelton sold and if the employer or principal is without power to total: $1,877,000 each line item of damages awarded was permitted by that rule. there is no excessive verdicts; each case is unique and dependent on its corporations in the steel-processing business. n.t. trial, 11/18/10, at 978. e. whether consol is entitled to judgment n.o.v. or, in the corp., 843 a.2d 410 (pa.super. 2004) (quoting stoughton v. kinzey, 445 stated that he did not understand it. after he failed the test, he protested not dictate how mr. gillingham was to troubleshoot the situation nor did as noted, consol suggests that the pain and suffering and related controlling the outcome of the case. it is only when the charge instances must fully and adequately convey the applicable law to the jury.” could not be required to take the polygraph examination as a condition of his estimation as to lost future earnings based on all the evidence presented.” and professional life, for his remaining life expectancy. immediately after he started with pumpaction since he began working on the microelectronics. he designed electronic circuits for computer programs and mr. and mrs. decker were married for thirty-six years and had three id. at 483-84. civil division at no(s): g.d. no. 08-011621 technology to consol, which leased buildings on its south park property so by such employer. (4) part of the employer's regular business entrusted to j-a05013-12 where he continued to write industrial software. once mr. stokson died, question 4. id. at 492-93. guesswork or speculation, but rather requires a reasonable basis to support which he serves persons other than the employer in whose service the injury basis to overturn the verdict due to the form of the jury slip. see treated for months with a chiropractor, and after a spinal mri and painful enough, or it got stuck somewhere or something, but the plus a two percent commission. a damage award is excessive if it deviates pain you really can’t think about it.” id. at 1024. mr. gillingham was - 31 - a podiatrist, who diagnosed and treated a broken sesmoid bone in his left the effect of productivity factors on lost future earnings, we directed the trial future pain and suffering $500,000 in the superior court of never be a statutory employee, the elements of the mcdonald test cannot pfbc project, which generated tens of millions of dollars for pumpaction and improperly denied: f. whether consol is entitled to judgment n.o.v. or, in the j-a05013-12 “a servant is one who is employed to render personal services to powers which do not deprive the contractor of his when mr. gillingham arrived at the office, consol presented him “with 1 mr. gillingham $1,877,000, mrs. gillingham $923,000, mr. decker mr. decker cannot achieve relief from that pain with medication due to issues f and g pertain to different bases for judgment nov with respect to portside investors, l.p. v. northern insurance co. of new york, 41 established that plaintiff david gillingham was consol’s quite specifically about wages that he lost from technical solutions and also only his own testimony and was not only blatantly self-serving, but pure - 14 - that secured the staircase to the structure. the two men fell thirteen feet past embarrassment and humiliation $200,000 nerve conduction tests, was found to have a compression fracture of the the verdict in favor of the gillinghams was excessive, exorbitant, or beyond that he lost $105,225 as he was unable to work from august 11, 2009, to consol give him the tools to perform that service. mr. gillingham specifically jury verdict form, 11/24/10, at 1-2. the manner in which such work shall be done.” joseph v. placing pumps in mines for several area companies. after ten years at customer site, the client would have proprietary technology and the client laborer or assistant in the same manner and to the same extent as to his dog, gardening, mowing the lawn, shoveling snow, and painting the house. to agree that the verdict was improper. an appellate court will for noneconomic loss, both past and future: (1) pain computer.” id. at 991. mr. gillingham delineated that he wrote a lot of court erred in allowing testimony relating to mr. gillingham’s years’ experience in selling industrial pumping systems from canada to the j-a05013-12 sleeping. of significance, mr. decker cannot use narcotic pain relievers, forming opinions or inferences upon the subject, the appellees by the fact that it had him sign a release, which would have been estimate damages without engaging in speculation.” detterline v. disabling constipation that has resulted in hospitalization. medical testimony is very porous and absorbs water into its interior where it cannot be future medical expenses $100,000 to solve those problems. mr. gillingham’s involvement was scheduled to last id. at * 4; mcdonald v. levinson steel co., 153 a. 424, 425 (pa. 1930). falling two flights and landing on a metal stairwell. a full four years after the substantiated that he lost business from a third client, key bellevilles. 1979) (“it is well established that the fact and the extent of the impairment - 28 - action at law or otherwise on account of any injury or death[.]”). denying consol’s motion in limine relating to liability expert assumptions must be based upon such facts as the jury would be nuts be maintained.” id. at 313-14. a fifty percent profit margin; and 2) a world class processing project worth we do not view the proof as to mr. decker’s future productivity as constitute proof of the existence of the facts necessary to 5.) disparity between the amount of out of pocket free bargaining agent in the matter. hence, the trial court did not err in undergoing the questioning, and contained a release of any liability as to the gauged by factors that include age, maturity, education, skill, and past medical expenses $124,000 be met where a ‘contractor’ is an independent contractor.” id. (citations business dealings with the possessor of the land. (3) a business visitor is a person who is invited to enter or herein, consol’s specific challenge to the evidence regarding a compulsion consisting of fear of losing his job if he refused.” id. at 113. he tried to return to work after the accident, but eventually had to cease future lost earning capacity $300,000 the marital relationship, and we do not view the discrepancy as grounds for correct legal principles applicable to the facts presented at trial. a trial court weeks after he started, he was called into the consol offices and asked to include both lost wages and medical expenses. thus, mr. gillingham’s award which the contractee reserves no control over about the proof offered, and the jury verdict was within the range of that future pain and suffering $500,000 of the job site. agreement to be valid include each party being a free bargaining agent. proof in that regard on his own testimony. pratt v. stein, 444 a.2d 674, action as well as to the jury award in favor of appellees herein, david and me.” id. at 992. for a planned project, he had a payment schedule but for j-a05013-12 q. would you be able to tell the jury and show them why they question 6. pa.r.c.p. 1042.72(b). the defendant has the burden of “borrowed servant”? alternative, a new trial because the trial court erred in - 25 - the following instructions to the jury. vicodin for pain, and told to see an orthopedic doctor. he sustained injuries mr. gillingham was mentored by iner stokson, an electric-controls engineer development was behind schedule. technical solutions hired mr. gillingham whom he provided services over many years as well as one-time clients. to the result, the employment is an hammer mark. supported by the evidence, the following factors are taken into and engage in leisure activities. mr. gillingham. if consol’s arguments regarding judgment nov as to that are further instructed that the opinion of an expert does not many of which had no evidentiary support? mr. gillingham was physically fit prior to the accident, jogged about mr. gillingham visited dr. michael seel, an orthopedic doctor. by that point, governs the conduct of the trial for causes of actions for bodily injury or are jury questions . . . and that no expert testimony is required in this instructions herein were given in accordance with this provision, and mr. gillingham was severely injured. he underwent three surgeries for law and to complete a number of household projects, including so long as he does it in accordance with the contract. unable to aid her with her mother and to complete home improvements that injury is permanent and continues to affect mr. gillingham’s ability to work noted, mr. decker was not and will not be able to perform any of these independent contractor.” weatherly area sch. dist. v. he would be asked to perform upgrades or create software. his work was deformed and bent and that it would not have bent due to the stair employee that the employer shall have power and after review of the jury instructions, we conclude that all three before a defendant will be considered a statutory employer under § 52, the defendant nor to make the injured party wealthy, nor to provide spine. by the time of trial, mr. gillingham was still treating for shoulder by the trial court. affairs and thirdly, each party must be a free bargaining agent to the (c) fails to exercise reasonable care to protect them c. whether consol is entitled to a new trial because the trial expert testimony is incompetent if it lacks an adequate basis in supra, cannot overturn this credibility determination. also, a plaintiff is not stated that he planned to work until age seventy because he did not have material fact as to whether the release was a contract of adhesion. past pain and suffering $2,000,000 execute his name were marked with stickers. mr. gillingham was never we noted that if there is a disparity of bargaining power between the of a software program and consol neither directed that enterprise nor told pain by focusing on its ratio to medical expenses. however, under the problems on the inside bolts that should have been inspected. id. at 324. associates, inc., 2012 pa super 74, 2012 wl 1010492 (pa.super. 2012). who stands to another in such a relation that he not only powerful narcotics, which caused severe constipation. after four months, development. n.t. jury trial, 11/18/10, at 1008. consol did not provide respond; lacking it he is not to be held accountable. continued employment, stated that the worker was not pressured into of control circuitry for their particular industry,” which was sold to the duty that a possessor of land owes to an invitee is “the highest the plaintiffs’ burden to establish the nature and extent of their with reasonable care.” id. the duty a possessor of land owes to invitees is manufactured his own hardware drives. he related that there was “a lot of excessive and beyond what the evidence warranted? thus, the purpose in awarding damages is neither to punish the 870 a.2d 330, 333 n.3 (pa.super. 2005) (“it is undisputed that as an a torn rotator cuff and suffered a fractured spine and bone in his foot. his - 36 - future medical expenses $50,000 notwithstanding the verdict will be entered only in a clear case reputation in the pumping business, and “was a very, very good salesman.” and embarrassment and humiliation. consol relies upon carpinet v. competent evidence. this means that expert testimony cannot appeal from the judgment entered may 27, 2011 pain and mental anguish on the part of the plaintiff, and the twelve days in the hospital, the plaintiff was released home in a wheelchair, then underwent and passed a polygraph given by another agency. after he become a mere employee or agent.”). rule 1042.72(b) provides the following guidelines for what mr. gillingham comprehensively outlined the severe pain he suffered from taken into surgery. when he awoke, his leg felt “[l]ike it was burning off out if you have any hidden rust conditions.” id. at 315-16. * the plaintiff has made a claim for a damage report from technical engineering consultant john frank. mr. hundley choice by the plaintiff but was the result of economic necessity. is well in excess of the jury’s $708,000 award. impact on our relationship because there’s been no real physical under the control of the employer, he is a servant; if not under court erred in submitting a jury verdict form for completion by $150,000 with a thirty-five to forty percent profit margin. the plaintiff also (a) knows or by the exercise of reasonable care support the opinion. hidden valley resort, l.p., 2 a.3d 1174, 1189 (pa. 2010); accord mrs. decker fully delineated a plethora of activities that the couple no longer future loss of ability to enjoy the pleasures of life $200,000 that there was some sort of ‘rework’ to the upper bolts. however, there was mr. gillingham’s assertion that the release was a contract of adhesion. j-a05013-12 id. at 1682 (you are to award money damages that will “fairly and a stack of documents” containing several hundred pages and informed helpin, supra at 273. that it was adequately preserved by presentation of a motion in limine and influenced by passion or prejudice. the end of march 2010, from the third surgery. mr. gillingham testified that pringle v. rapaport, 980 a.2d 159, 165 (pa.super. 2009) (citations and mr. gillingham worked briefly for a software engineering company called i2t, nature of medical treatment, the duration and extent of physical j-a05013-12 where the facts are such that no two reasonable minds could fail part of the mechanism that secured the staircase, and consol failed to before: bowes, olson, and platt,* spouse. while consol complains about the difference between the is viable under applicable substantive law, the court shall give retired senior judge assigned to the superior court. be based solely upon conjecture or surmise. rather, an expert's who is not a contractual or common-law one, but is made one by the act.” defendant. we ruled that the trial court should have submitted to the jury the steps separated from the building due to the disintegration of rusty bolts future lost earnings and has raised a claim for a damage award for noneconomic loss that an actual inspection of the staircase components and building as well as forty-four years, on the question of liability. he reviewed photographs taken and engaged in fishing, skiing, golfing, hiking, and skating. he built a cabin have retained the right to receive two percent commission on sales. id. at j-a05013-12 appellant’s brief at 6-7. degree of certainty that the bolts holding the stairwell to the building were speculative testimony? projected increases in productivity must be taken into account. id.; accord were before the damages occurred. you are instructed only to time you design something, we worry about the rust.” id. at 483. he holding the stair in the air. therefore, it is critical that those bolts and/or so completely taken away as to make his selection of the means and remainder of his projected 25.5 years on this earth. conclude that the lost future earning award was supported by the evidence. and emphasis omitted). we concluded in patton that the issue was j-a05013-12 there was “this huge void,” and mr. gillingham “was getting a lot of inquiries bolts securing it to the building disintegrated due to rust. based both upon past embarrassment and humiliation $25,000 earned $125,000 per year, the witness went to work for pumpaction, inc., order to sustain a verdict. gary v. mankamyer, 403 a.2d 87, 90 (pa. consol energy, inc., compensation to the injured parties” and was “well beyond what the pumps, where he was northeastern manager for that canadian-based function, he crawled from under mr. decker, stood up, and began to walk in the necessities of his or her situation.” id. that allows the operators to control their aspect of the operation from a speculative. “sort of rework after the initial installation.” id. at 500. smalls, supra at 415. much in retirement savings. there was nothing speculative or uncertain - 24 - - 11 - by the necessities of his or her situation. thus, for example, an exculpatory - 20 - is loath to use since they affect his cognitive functioning. emergency room. there, mr. gillingham reported pain “in the upper right given these facts, we conclude that the trial court did not err in consol energy, south park, and involved the following. doug farnham, who the final contention that we address is that the trial court erred in the stress from the stairs, while the bottom two braced the structure and - 29 - - 42 - j-a05013-12 independent contractor and that he was an employee of technical solutions. ensure that a plaintiff is fully compensated for loss future earnings, (pa.super. 2006) (citing employers liability assurance corp. v. in addition to the shoulder injury, mr. gillingham suffered a foot proceed to question b.6. him how to solve the software issues that it was experiencing. states: would “coordinate all the different equipment in the plant, so that it would the computers that he was using to write the software for the control indicated that the pain is permanent so that the plaintiff, who was fifty-four opinion by bowes, j.: filed: june 27, 2012 - 35 - and sustained bodily injuries that we outline in more detail, infra. not reflect the free choice of one party who is forced to accept the releases caution dictates that the building owner control that substance to prevent “if the bolts disappear, the stair collapses immediately because nothing is record, strongly suggests that the trier of fact was the first was to repair the torn cuff, the second surgery occurred after he home. he started to pick up his computer, but, unable to do so, became after he continued to have “a lot of problems walking.” id. at 1045. he saw companies for whom he had worked began to contact him “to do some work calling, and who in such service remains entirely under the nissley v. candytown motorcycle club, inc., 913 a.2d 887, 890 j-a05013-12 torts § 332, which is utilized by this court to determine the status of a j-a05013-12 or control, which renders one a servant rather than an j-a05013-12 total: $4,543,000 in any action for bodily injury or death in which a plaintiff - 9 - burden to prove their damages with reasonable precision and $100,000 with a two percent sales commission on pumps. consol complains there was stabbing pain in his right shoulder, thoracic region, arm, neck, wake up in the middle of the night with excruciating pain. . . . it would dr. kasraie also observed, through visual inspection of the bolts the jury’s compensatory award to the gillinghams was as follows: on the verdict. exactness. the law does not permit a damages award to be based on mere j-a05013-12 due to the collapse of the stairs, mr. decker suffered three fractures to past loss of ability to enjoy the pleasures of life $50,000 challenges to various rulings made during the course of this personal injury operations. fact. while an expert's opinion need not be based on absolute consol additionally levels a complaint as to mr. gillingham’s award of concepts in question were adequately conveyed to the jury. see n.t. jury the trial court erred in refusing several requested points for charge. relationship must exist. further, because an independent contractor can - 12 - court to adopt an evidentiary approach; i.e., the fact-finder should consider he was employed by hazelton pumps (“hazelton”), which sells industrial opinion merely because he is an expert. . . . in general, the opinion of an mr. decker can no longer engage in any of those leisure activities or aid consortium. appear on figure 11 up there? statutorily immune from suit under § 52 of the workers’ compensation act. - 17 - command or direct the acts of the alleged employee death and specifically outlines the jury instructions on noneconomic loss. it mr. gillingham was an electrical engineer who specialized in mr. gillingham specifically established his wage loss. he testified that contract between the plaintiff and defendant and the factual circumstances q. when that was hammered - - do the hammer marks business entrusted to such employee or contractor, shall be liable to such destroy the fabric of the metal. when metal supports columns or a stairway, we set forth a brief factual and procedural recitation before addressing factors that should have been taken into account in performed testing. he confirmed that the stairwell was supported by the top account: software for them, and serviced all of the jobs. on occasion, he such an award.” helpin, supra at 270 (citations omitted). furthermore, to corrosion of the bolts holding it up” and that an inspection of the backing the statutory-employer immunity defense, which consol seeks to invoke - 13 - building by using an exterior metal stairway. as they started to descend, them with some of their controls systems. from time to time, they would or contractor permitted to enter upon premises,” provides, “an employer rule 703. bases of opinion testimony by experts we noted it is against the public policy of pennsylvania to require an the issues raised in this appeal. on june 12, 2007, mr. gillingham and plaintiff and defendant, exculpatory agreements can be invalidated on the submit a verdict slip that conformed to pa.r.c.p. 223.3. submitting the issue of whether mr. gillingham was consol’s employee under hazelton, he was promoted to general manager in charge of its pittsburgh age of the plaintiff, the severity of his or her injuries, whether unnecessary if consol enjoyed immunity from suit under the workers’ j-a05013-12 mrs. decker with household tasks. can you tell them that, show them. we noted in patton, supra that, “a statutory employer is a master occupied by or under the control of such employer. (3) a subcontract made costs generally were ten to fifteen percent of his project income. mr. decker’s lost future earnings relates to whether he would have earned j-a05013-12 for seven years, earning $125,000 per year and took a base pay reduction to collapse, mr. decker was unable to work full-time and did not earn his full work in a coordinated fashion to process the material that they were 979 (pa.super. 2009). occurs[.]” we use the following test to determine if a person is a servant: what can be awarded, and what plaintiff must establish). hence, a new trial mr. hundley had viewed the outside rust on the bolts and on the backing from these customers that [mr. stokson] was doing services for, to help international steel company based in sweden with facilities in japan, north mr. gillingham for each item listed below: be those perceived by or made known to the expert j-a05013-12 earnings amount was speculative. we disagree. mr. gillingham testified caused to his invitees by a condition on the land if, but only if, h.a. winston co., 493 a.2d 111 (pa.super. 1985). therein, an employee remained for three months, and his injury to his achilles tendon affected his j-a05013-12 a. yes. verdict excessive unless it is so grossly excessive as to shock our established by the evidence. thus, we reject consol’s challenge. 6.) damages plaintiff requested in his complaint. j-a05013-12 contract with an owner or one in the position of an owner. (2) premises salary would increase to $125,000 once he proved himself and that he would for example, in soxman v. goodge, 539 a.2d 826 (pa.super. 1988), - 27 - required to present expert testimony on past and lost future earnings in contract is let for work to be done by another in - 33 - we now outline the evidence presented as to the deckers’ damages. have hmis, human machine interfaces. it is specialized computer software j-a05013-12 or an error of law that controlled the outcome of the case. - 23 - fact that mr. decker would have earned commissions was speculative and future embarrassment and humiliation $100,000 bring tears to your eyes.” id. at 1048. he had three surgeries on that area. the bolts were secured by a metal plate located inside the building, past disfigurement $25,000 what is considered reasonable compensation. note to pa.r.c.p. consol raises these issues for our consideration: even though he suffers continual pain, because those drugs cause him future disfigurement $100,000 independent one establishing the relation of state the amount of money, if any, you award mr. decker anything other than level ground. the witness stated that due to his leg such control, he is an independent contractor. . . . it is not . . . mr. gillingham, retained those items, as is evidenced by the fact that it pictures, appellees’ expert witnesses were able to opine to a reasonable thus, as is readily evidenced by the record, dr. kasraie’s opinion about doing the work contracted for. mr. gillingham did “all their process automation. on their lines, they will $457,000 was speculative. specifically, consol maintains that appellees “theorized mr. gillingham continued to suffer from unresolved pain that affected his yannick beaule, mr. decker’s supervisor at pumpaction, informed the jury three times a week, lifted free weights, enjoyed leisure activities with his complications arising from its use, and that he will suffer from pain for the whole and no more. washers on either end.” id. at 313. since the bolts supported the stairwell, cohen v. albert einstein medical center, 592 a.2d 720, 729 (pa.super. j-a05013-12 - 43 - j-a05013-12 company, mr. gillingham helped care for his mother-in-law, who lived across (pa.super. 2002). restatement § 332 provides: injuries, “it takes away my ability to go out and fully analyze a job, which is somebody had to force it in. would discover the condition, and should realize that consortium. j-a05013-12 into the ball of the humerus, and the third surgery transpired after stated that mr. gillingham’s relationship with consol was that of an amount of the verdict. as we noted in smalls v. pittsburgh-corning mr. hundley noted that the stairwell in question herein was secured to within the prerogative of the jury to credit this testimony and reject consol’s - 15 - merely damages. hence, we will first address issue e, followed by f, g, and reworking was not to any extent based upon speculation. rather, consol complains that this award was “inconsistent with the idea of fair consisting of a ssab project that would have resulted in a $150,000 profit testimony by noting that he never produced the hundreds of pages of in this case, consol avers these proposed points for charge were the stairwell may have been compromised by rust and corrosion. hence, we master and servant. the relation of master and - 5 - omitted). circles due to the overwhelming pain. soon, other people appeared and employee. having this power the employer must id. herein, mr. gillingham admittedly was on the payroll as an employee 1042.72(b). safe. when he arrived for questioning, the polygraph administrator gave the evidence warrants.” consol’s brief at 14. consol levels no complaints about appellant no. 968 wda 2011 realize the danger, or will fail to protect themselves furthermore, the contract between consol and technical solutions expressly plant. in 2001, mr. gillingham started his own consulting business called of pennsylvania jurisprudence, “the conditions allowing an exculpation (1) the evidence supporting the plaintiff's claim; (2) what the evidence warranted. certainty, an opinion based on mere possibilities is not the facts or data in the particular case upon under this act shall be exclusive and in place of any and all other liability to mr. gillingham that he “had to sign those.” id. the places where he had to court committed a clear abuse of discretion or error of law such employees, his legal representative, husband or wife, parents, required to treat with narcotics. he was unable to help with his mother-in- id. at 1194-95. and mrs. gillingham’s award of $923,000, we observe the following. (footnote continued) enjoys together and many chores that mr. decker cannot perform. as testify about his lost future earnings based on speculation. “loss of future mother-in-law, both of which are beyond the ordinary chores assumed by a the law and were not otherwise covered in the court’s charge expert to testify based upon speculation and contrary to the pages in question since he was contractually obligated to provide his our standard of review of a trial court's denial of a motion the [defendant’s] site.”). pa.r.e. 703. two delineated projects that he could not undertake. we note that it was he remained unable to work full-time due to pain and doctors’ appointments - 39 - (2) a public invitee is a person who is invited to enter or remain no proof to support that theory.” consol’s brief at 41.1 testimony, steven klepper, ph.d., a carnegie mellon university economist, now, we consider consol’s position that it is entitled to remittitur. by appellees did not lack a foundational basis. in this case, appellees jury instructions in a civil case is to determine whether the trial rust, it is a warning sign that the owner “would need to clean the metal, a new trial. [w]e noticed that the top two rods that are larger, they had a 13. there are two types of rust: surface rust, which “would not affect the in this case, the contract between mr. gillingham and technical work out there for people like myself. you can work anywhere you want, as mr. decker were working at building no. 19 at the consol facility in south at 1030. the law provides actually inspected the nuts, bolts, and plates involved in the june 12, 2007 herein, arises pursuant to 77 p.s. § 52 of the workers’ compensation act. supra at * 5. “[i]n order to satisfy the mcdonald test[,] a master-servant - 30 - - 44 - testified as follows. the consol building was constructed of concrete, which plaintiff's physical condition before the injuries. america, canada, the united states, and mexico. he spent months in to write industrial software for automation. he explained that the software dr. kasraie premised his conclusion that the bolts were reworked on a visual when mr. decker left hazelton, he began employment with toyo upon the fact that the bolts were hammered into the building; rather, consol to the jury? while appellees urge a finding of waiver of this objection, we conclude after four years, mill equipment engineering was sold, and this is hard to talk about and embarrassing, but there just agreement so that the contract is not one of adhesion.” chepkevich v. damages that included past and future disfigurement, loss of life’s pleasures, consol also claims that it is entitled to judgment nov as to plaintiff. see gutteridge v. a.p. green services, inc., 804 a.2d 643 to his shoulder, spine, left leg, and left foot. the bruising along his left leg systems. id. at 1009. when mr. gillingham required a day off from work, v. dissipated by sun and wind. n.t. trial, 11/15/10, at 304. rust is also a q. now, what does that indicate to you then, if both of the inc., supra at 656. “the landowner must protect an invitee not only mcmanamon v. washko, 906 a.2d 1259 (pa.super. 2006) (approving line this proof was sufficient to present a question of fact as to whether courts refuse to enforce releases from liability, when the agreement does we invalidated releases executed by a patient and her husband as a pennsylvania his left femur as well as a bruised knee. he experienced severe pain numerous objections at trial that the expert witnesses’ opinions were consulting business, drayham automation, because the owners of the abuse of discretion or an error of law. tindall v. friedman, mitchell, 853 a.2d 366 (pa.super. 2004), which supports its position and in this case, mr. gillingham argues that the trial court’s decision to surgery. - 37 - in west virginia. he performed household chores that included walking the we first examine the evidence relating to damages adduced by the would have been evidence that the portion of the bolts inside the building pennsylvania mrs. gillingham confirmed that after the accident, her husband was was asked by his employer to take a lie detector test, which he felt employee a document to execute and told him that he had to sign it in order relief, the motion was denied, and these appeals followed entry of judgment on land as a member of the public for a purpose for which the a.2d 1240, 1242 (pa.super. 1982)): id. 2012 wl at ** 3-4 (emphasis in original). (1) an invitee is either a public invitee or a business visitor. items on a verdict sheet similar to that contained herein). hence, we reject feet from the ground on the second floor when the stairwell collapsed. he a. yeah. or agent, there is no superior whose duty it is to informed that he was assenting to a waiver of his right to sue consol in the is not warranted on this basis. j-a05013-12 and a world class processing project worth $60,000 in profit. finally, he following five elements must be present: “(1) an employer who is under past and future earnings. furthermore, the award of $2.5 million in past in determining whether a jury's award of damages is related damages is only four times the amount of medical expenses, and lost later, for the removal of the screws placed in his bone during his first compensation. in deciding whether the award j-a05013-12 appellees presented expert witness philip hundley, an architect for two bolts and that the stairwell collapsed because “the bolts failed because - 16 - employer, but the existence of the right or authority to interfere consol’s modern power plant, helping with the experimental technology that canada to jamaica. in 2005, after eight years at toyo pumps, where he foot. the witness also experienced back pain the day after the accident, future lost earnings and would result in a new trial as to both liability and damages rather than it involves an unreasonable risk of harm to such trauma to my right arm, and i sustained a lot of trauma to my left leg.” id. alternative, a new trial, because the evidence at trial supplanted by a specific rule of civil procedure, pa.r.c.p. 223.3, which was mrs. gillingham established that the couple no longer is able to engage in j-a05013-12 4.) the plaintiff's ability to continue employment; the subjective belief of the plaintiff rather than express statements by either toyo pumps, was very professional, had experience, enjoyed a good problems. with acid mine drainage while earning credits towards his master’s degree. has wide latitude choosing the precise language of the charge, but in all the workers’ compensation act to the jury. patton v. worthington made a projection that mr. decker’s lost earnings were $1.25 million, which are met. first, the clause must not contravene public policy. secondly, the into the wall. id. at 494-95. based on his review of the photographs, visual and future pain and suffering must be viewed in light of the fact that jj. earnings. consol suggests that the award cannot be sustained since, “the consol. thus, they were invitees as defined by restatement (second) of testified at trial that no one from consol told him the manner in which to with respect to mr. decker, the award of pain and suffering and the point you couldn’t really take the nut out. you could see the pumps, as an applications engineer for twenty years. he worked on acid nurse her husband through the medical procedures. significantly, the jury which included 12 separate line items for damages, inquiry is whether the alleged servant is subject to the alleged pennsylvania. therefore, the plaintiffs have the duty and the assumptions about the manner in which a medical procedure was controls the results of the work of that other, but also may direct v. sense of justice. id. large verdicts are not necessarily park, pennsylvania, when they exited the second floor of the concrete verdict does not shock one’s sense of justice, and we cannot overturn the to determine their condition. id. at 338. remove mr. gillingham’s ability to choose the means and methods of 27. the purpose of awarding damages in cases involving head, and hip. an mri revealed that he had torn the rotator cuff in his right court concluded that the release of the two defendants was valid unless the services on the project through technical solutions. mr. gillingham believed j-a05013-12 reasonable compensation, the court shall consider awards were outrageous given the medical expenses incurred. however, we judgment affirmed. past disfigurement $100,000 $100,000 salary in 2007 or thereafter. he was only paid for the hours he contact. many contacts in the pertinent industry from working at toyo pumps. he j-a05013-12 consol’s brief at 62 (emphases in original, citations omitted). whitewater challengers, inc., 532 pa. 504, 616 a.2d 620, condition for receiving medical records. we concluded that the releases convincing the court that the award deviates substantially from deteriorating metal or any other structure contacted with that.” id. at 312- a. because they were beaten up by a hammer, you know. we mr. beaule substantiated that, after the injuries suffered in the stair at 1103. the witness explained that occasionally, when he went to a he was well-known nationally, especially in the special area of slurry pumps, expert has value only when you accept the facts upon which it is based.”); was fully substantiated by his testimony that he lost $105,225 due to his with a reasonable amount of information sufficient to enable them to q. how has all of this affected your relationship? the plaintiffs should not be placed in a better position than they a.2d 758, 760 (pa.super. 1998)). did not err in submitting the issue to the jury for resolution. - 19 - as noted, on the day in question, mr. gillingham was about thirteen (b) should expect that they will not discover or company. for that organization, mr. decker placed pumps in mines from alternative, a new trial on the issue of damages, because the for pain and suffering and related damages was actually only slightly more submitting a verdict slip to the jury that contained itemized categories of his work, climbing ladders, and crawling. he had long-term customers for or future non-economic loss, a jury may consider, inter alia, the gillinghams. mr. gillingham, who was forty-nine years old at the time of the compensation awarded for mr. gillingham’s loss of life pleasures, $150,000, relied upon by experts in the particular field in that the evidence submitted by mr. decker that indicated that he would have award. compare smalls, supra (award of $500,000 in loss of consortium amount of all out-of-pocket expenses, not just medical expenses, and the shoulder. compelled to undergo, about money that was missing from the employer’s b. whether consol is entitled to a new trial because the trial grown sons and one grandchild. prior to the accident, mr. decker was active perform his job since none of its employees had expertise in software n.t. trial, 11/16/10, at 598. pumpaction anticipated that mr. decker’s base he started working full-time on the project in march 2006. a couple of negligence are not favored in pennsylvania and are strictly construed. remain on land for a purpose directly or indirectly connected with greenville business men's association, 224 a.2d 620 (pa. 1966)). “it is the award for medical expenses, but suggests that the past and future infirm, taking into account the helpin factors. mr. decker had twenty-seven speculation.” consol’s brief at 30. “a plaintiff need only provide the jurors (pa.super. 2009) (citation and quotation marks omitted). quotation marks omitted). “a trial court must instruct the jury on the during the site inspection, a report from engineer dr. behzad kasraie, and a future loss of ability to enjoy the pleasures of life $100,000 award for past and for future noneconomic loss. a. whether consol is entitled to the entry of remittitur or, in the the loss of consortium awarded to mrs. gillingham cannot be stated that “corrosion is a sign of trouble and triggers a duty to investigate.” duty owed to any entrant upon land.” gutteridge v. a.p. green services, past pain and suffering $500,000 big huge, you know, hammering mark at the end of it, lead to servant is not inferable from the reservation of the two actions were consolidated for purposes of trial. the jury awarded independent business, other than that of supplying laborers or assistants, in exculpatory documents releasing a party in advance for that party’s own debra gillingham and clifford and pamela decker. we affirm. g. whether consol is entitled to judgment n.o.v., or, in the he directed that request to technical solutions. - 21 - in a charge will be found to be a sufficient basis for the award of of technical solutions, which paid workers’ compensation on his behalf. that mr. decker was hired because he had worked with pumpaction while at trial court’s refusal to award consol remittitur. which an expert bases an opinion or inference may pertinent law, in this context, we are to review the disparity between the expenses and the amount of the verdict; and that section, which is entitled “employers' liability to employee of employee j-a05013-12 mr. decker worked thirty hours a week in 2009. by the time of trial, me.” n.t. trial, 11/17/10, at 851. the pain continued to worsen, and at his the work site if he did not sign the papers that consol presented to him were issues, suffered pain in that area, had limited range of motion, and was workers’ compensation act. 77 p.s. § 481(a) (“the liability of an employer - 6 - wrote software for automation designed to coordinate the equipment in a trial vol. 5, 11/22/10, at 1678-79 (“you are not bound by an expert’s gaudio v. ford motor co., 976 a.2d 524, 550 (pa.super. 2009) (citations consol energy, inc., with respect to those twelve permanent clients, mr. gillingham was which involve water containing other materials and are complicated. and suffering; (2) embarrassment and humiliation; once at pumpaction, mr. decker started serving its customer, pfbc, at chores, which included home improvements and aiding with the care of his j-a05013-12 injury. he went to west penn hospital emergency room on august 7, 2007, sound the trial court’s decision to submit this question to the jury, and concern with respect to buildings in that “rust is really the first step of the j-a05013-12 (3) loss of ability to enjoy the pleasures of life; and in these consolidated appeals, consol energy, inc., (“consol”) raises was not supported by evidence where spouse was in his seventies and where (footnotes omitted). by the time of trial, even awakening him if he rolls onto his left side while unable to move and then realized mr. decker, who was moaning in ground that the plaintiff’s entry into the accord did not represent a free him by consol, and he stated, “if i would have not signed them, i would inspect, and repair the stairwell and that the structure collapsed after the houston, texas, where ssab owns a mill. for that corporation, twenty-five pounds, navigating industrial facilities in order to install and test appellant no. 969 wda 2011 alternative, a new trial because david gillingham executed a was an improved way to burn coal. he would gather solids and coal waste submit the issue to the jury was proper under the authority of leibowitz v. completing his work. under the authority of patton, these facts rendered collins v. hand, 246 a.2d 398 (pa. 1968) (expert made unsupported mr. gillingham’s testimony was sufficient to present a genuine issue of deviates substantially from what could be considered first attempt at physical therapy, mr. decker vomited and fainted. after bargaining positions of the parties. id. at 828. we noted that pennsylvania consol also assails the award to mr. gillingham for past and future was able to actually work and, as outlined infra, has not been able to return honor your agreement and protect this technology.” id. at 1105. he also facts? the project ran into difficulties with electrical controls and the software properly submitted to the jury in that case based on the language in the may have been rusted. id. at 333. he related that the presence of rust future lost earning capacity $708,000 - 7 - kaczkowski v. bolubasz, 421 a.2d 1027 (pa. 1980). productivity is produced the signed release at trial. mr. gillingham’s contractual obligation immediately after the fall, was transported to upmc mercy hospital, and was compensation act. finally, mr. gillingham was working on the development relationship over the years. i do business with these companies. they trust appeal from the judgment entered may 27, 2011 damages and damages must not be based on guess or submitting the question of the release’s validity to the jury, and the jury’s who permits the entry upon premises occupied by him or under his control which the expert's opinion is based on facts and data: award, when assessed against the evidentiary that he was not in a position to refuse to sign the documents presented to documents. however, this position is disingenuous since consol, not past medical expenses $77,000 2012 pa super 133 excruciating pain, was on top of him. after slowly regaining some motor have issues, and they would require some type of service.” id. at 982. capacity? (citation and quotation marks omitted) (“the factfinder is free to believe all, position. mr. gillingham’s testimony was sufficient to support a finding that we note that the jury was apprised of mr. gillingham’s income as required physical activity including lifting objects that weighed in excess of mr. decker’s employer and his economic expert witness were permitted to the very phrase ‘independent contractor’ implies engage in other forms of physical exertion. only injury attributable to tortfeasor was spouse’s shortness of breath). the 28. damages are not presumed under the laws of owned farnham & pfile construction company, had acquired technology to there are four items that make up a damage award facts or data need not be admissible in evidence. j-a05013-12 claim for lost wages, lost future earnings and earning his employer otherwise than in the pursuit of an independent clause in a contract of adhesion is not valid.” pa. jur. commercial § 4:70 own special circumstances. id. in awarding damages for past conducted). furthermore, as is readily apparent from a review of the contract must be between persons relating entirely to their own private samuel-bassett v. kia motors america, inc., 34 a.3d 1, 39 (pa. 2011) consol is not entitled to judgment nov based upon the fact that it is d. whether consol is entitled to a new trial because the trial and includes corporations, 77 p.s. 21, while an employee is “declared to be “needed to sign . . . a non-compete agreement.” n.t. jury trial, 11/18/10, on appeal, consol attempts to impugn the veracity of mr. gillingham’s “in ascertaining the character of the relationship, the basic based upon the plaintiff’s execution of the release. on appeal, we reversed. mr. gillingham felt disoriented, and he wanted to leave the area and go state the amount of money, if any, you award to plaintiff a. they were from the inside. pa.r.c.p. 223.3. at or before the hearing. if of a type reasonably is a concern to an engineer because “rust is really what kills the metal. any the worker acknowledged that he quickly reviewed the document but j-a05013-12 applying that law to the case at hand, we conclude that the trial court j-a05013-12 thing in with a hammer. and possibly the hole wasn’t large that synonymous with servant.” 77 p.s. § 22. finally, 77 p.s. § 25 states that 2.) whether the injury is demonstrated by objective range permitted by this evidence. mr. gillingham because it is immune from his suit under the pennsylvania plate meant that the structural integrity of the interior bolts that supported witnesses.”). third surgery. mr. gillingham also testified that he lost two specific projects clifford decker and pamela a. helpin v. trustees of university of pennsylvania, 969 a.2d 601, 617 the plaintiff had a second surgery, which involved a second recovery a year so that indicated to us that somebody basically drove that appellees land is held open to the public. (“pumpaction”) which supplies and repairs pumps and pumping systems and future disfigurement $75,000 the deckers and gillinghams instituted separate civil actions against the means of its accomplishment but merely as relevant evidence as to productivity factors and then make an informed was decided on may 27, 2004. however, carpinet has since been intimate relations: mr. decker obtained a bachelor of science in biology and did chemistry work civil division at no(s): g.d. no. 08-010867 future earnings cannot be calculated with mathematical precision and and 28 where said instructions were a correct statement of j-a05013-12 the fact that mr. gillingham was not consol’s employee is further evidenced he has sustained[.]”); id. at 1682-92 (discussion of damages in general, a. i just said that. it looks like it wasn’t going in, and - 10 - contractee and contractor and not that of united workers ass'n, 343 pa. 636, 23 a.2d 470, 472 (1942). $4,543,000, and mrs. decker $457,000. consol filed a motion for post-trial the witness continued that one of the bolts that he visually observed rust visible on the backing plate was an indication that there were additional plate and outside bolts would have alerted consol to the problem. id. if was subject to liability in this action due to its failure to inspect the building - 4 - it is essential to the relation of employer and guess or to state an opinion based on mere conjecture. you warranted in finding from the evidence. accordingly, the pain prevents intimacy. he was compensated in other areas for this loss in accident, testified as follows. after high school, he was a coal miner. while in the court of common pleas of allegheny county pennsylvania rules of evidence prescribe a threshold for he normally would have been capable of performing. he also can no longer mr. hundley also indicated that there was rust on the outside bolts that a. we’re partners. they say in good and in bad times when you (4) disfigurement. gillingham, his wife, rain drainage systems and water treatment systems. mr. decker also took a employee to undergo a polygraph as a condition of employment. the trial 622 (1992). gillingham and decker were on consol’s property to perform services for j-a05013-12 judgment nov as to mr. gillingham since he executed a release. the trial j-a05013-12 integrity of the structure,” id. at 315, as well as corrosive rust that begins to accident, he continued to treat with narcotic drugs, which he stated that he mr. decker’s leg suffered nerve damage and his pain was not resolved those items into a usable form. mr. decker had to carry heavy buckets and appellees also presented dr. kasraie, an engineer, as a witness. he have samples to show and pictures. processing.” id. at 981. at that time, he worked primarily for steel mills. 3.) whether the injury is permanent; after careful review, we conclude that the expert testimony proffered award damages as you will be necessary to make the plaintiffs when injured, will suffer pain from that condition, which affects his personal suggestion that mr. gillingham’s wage loss was to any extent speculative. ____________________________________________ state the amount of money, if any, you award materials using pumps in disposal ponds at consol’s facilities and process after review of the record, we cannot agree that proof regarding the mr. gillingham had a second episode of frozen shoulder syndrome. the for computer programs, primary parts for industrial controls, and he worked invitees, and aided in support. mr. hundley continued, “when i use the term bolts, these mr. hundley confirmed that the stairway collapsed due to “rust, the witness described the pain from the torn rotator cuff; “i would are actually studs that have threads on them, that have really nuts and reflect the free choice of one party who is forced to accept the releases by pamela a. decker for past, present, and future loss of that farnham could demonstrate the technology before consol decided bolts. the injured party with a windfall. this is to say that the plaintiffs working full-time, he obtained his undergraduate degree in electrical - 40 - mr. gillingham had about twelve permanent clients, including ssab, an disturbing the award. we simply cannot agree with consol’s assertion that for each item listed below: deckers: was compelled to execute the documents due to consol’s superior bargaining hammering mark indicates an unprofessional installation. you premised liability against consol upon allegations that it failed to maintain, valid release and waiver of liability? inspection of the items in question and the existence of hammer marks on he authority to direct and control the acts of the alleged additionally, mr. gillingham developed software, and in late 1998, he started consol’s reliance upon carpinet and affirm the trial court’s decision to ability to walk for eight to nine months. two days after the accident, damages awarded by the jury are plainly exorbitant, solids handling systems to various industries. his base salary was $100,000 earned sales commissions was speculative and should have been excluded not in the business of providing software solutions. finally, consol did not dependents, next of kin or anyone otherwise entitled to damages in any freely bargained for exchange” and instead, were a product of the disparate j-a05013-12 - 38 - injuries were demonstrated by objective physical evidence, and the shoulder mr. gillingham was discharged from the emergency room, prescribed the fact that appellees’ expert witness allegedly presented testimony that whatever the problem was, refinish it, making sure you got all the rust off. is considered to be an “excessive” amount of damages: - 2 - - 32 - for example, a steel mill, could be very sophisticated and expensive and that administration. our courts refuse “to enforce such releases when the agreement does not the term contractor “shall not include a contractor engaged in an respond for the acts of an inferior. where a triggered a responsibility to further investigate the structural integrity of the life; hence, the lost future earnings award of $300,000 was well within the would have generated commissions in the united states. id. at 634. mrs. gillingham is able to engage in sexual relations while mr. gillingham’s master's control or right to control.” knepper v. curfman, 158 such subcontractor. (5) an employee of such subcontractor.” patton, to take the test. the instrument in question apprised the employee that he reported on his tax returns. it chose to credit his testimony; we, as noted hyrcza v. west penn allegheny health system, inc., 978 a.2d 961, to technical solutions and subjective belief that he would have had to leave - 26 - would have violated his contract with technical solutions. based on this testimony, the jury rendered the following award to the in 2001, mr. gillingham decided to start his own engineering mislead or confuse rather than clarify a material issue that error had the potential for future sales. j-a05013-12 as follows: technology advances. helpin, supra; kaczkowski, supra. “to determine with a large client base. reverse a trial court ruling only if it finds an abuse of discretion jurisdiction to show loss of earning capacity[.]”). a plaintiff can base his the loss of consortium award is also supported by the evidence herein. most of its pumps to that industry. after that course, mr. decker started adequately compensate the plaintiff for all the physical and financial injury control and direction of the latter.” id. if you find rust in one place, you need to make sure you investigate and rule hasn’t been any physical relations. consol claims entitlement to judgment nov as to all plaintiffs based on admission of expert testimony dependent upon the extent to solutions as well as the one between technical solutions and consol clearly collapse. the only explanation for the bent bolt was that it was hammered debra gillingham for past, present, and future loss of the issue of whether the plaintiff signed the release and took the test “under j-a05013-12 forced to take oxycontin, a powerful pain reliever, for the horrific pain. do not merely look at medical outlays. rather, out-of-pocket expenses than twice the amount of that plaintiff’s special damages. furthermore, in the court of common pleas of allegheny county question had rust along the side and bottom. mr. hundley stated that the id. at * 7 (citation omitted) (“only when the independence of a contractor is past lost earnings and past lost earning capacity $161,000 past lost earnings and past lost earning capacity $100,000 are not supposed to be doing that, but that’s what we observed. testimony of the expert witnesses, liability against consol was not premised would ask him to sign a statement indicating that he would not share the future embarrassment and humiliation $25,000 an electrical engineering project.” id. at 983. he noted that the controls in, court erred in refusing consol’s requested instructions 19, 27 engineering with a specialty in microelectronics from the university of plaintiff showed that the releases were required as a condition of corroded, the corrosion caused those bolts to fail, there was visible rust on the release was a contract of adhesion and that mr. gillingham was not a q. despite all this, you’ve stood by david throughout this whole “their exclusive controls provider. essentially, we, you know, form a take your vows. and these are bad times. and i don’t believe in technology with another company. notwithstanding the verdict (“nov”) as to liability. if consol prevails in this to work full-time due to his debilitating leg injury. based upon mr. beaule’s walking away. inability to work from august 11, 2009 to the end of march 2010, after his against it, and often as you want.” id. at 996. witnesses and testimony and overruled consol’s objections to of a laborer or an assistant hired by an employee or contractor, for the for mill equipment engineering in pittsburgh. that plaintiff “developed a lot improvements, that he started before the accident. pittsburgh in 1996. after graduation, he started designing electronic circuits employers liability assurance corp., supra. as noted in the summary in the superior court of three months, and technical solutions hired him for a 36.5 hour work week. court submitted the issue of the release’s validity to the jury due to in that discipline, whether it be automation or some type of design work for have to leave the site . . . because it’s like saying, no, i’m not going to sufficient for this matter to fall within the parameters of the liebowitz should be compensated for the damages they proved. however, consol also contends that it is entitled to a new trial because exercise reasonable care because it did not discover the corrosion. commissions at pumpaction. as noted, mr. decker worked for toyo pumps which he used for four months. his pain continued and he was prescribed they were rusted, they were corroded. there was really nothing left. they methods of carrying out his work subject to his employer's will does he decision. we review a trial court order denying remitittur for an d'ambrosio's dodge, inc., 763 a.2d 935, 941 (pa.super. 2000) (quoting caribbean, and thus, a vast amount of skill in the field. additionally, he had our standard of review when considering the adequacy of certainty they claimed to have sustained. in other words, it is state the amount of money, if any, you award to plaintiff court erred in permitting mr. decker’s employer and economic for judgment notwithstanding the verdict is whether there was - 8 - thought that he was slipping at first, but then understood he was on the consol to recover damages caused by the injuries suffered by the two men. and recognize that the visible rust on the outside of the bolts and backing - 41 - that it was incorrect and that he had not taken the money. the employee he lost two specific projects: 1) an ssab project worth $300,000, which had are deformed, why those, the ends of that bolt are deformed. decker, were infirm because they “violated public policy and were not the result of a earnings, if proven, is properly included in a damage award. obviously, j-a05013-12 plaintiff were meritorious, issue c would be rendered moot. finally, issue h issue e relates to whether consol is entitled to judgment inspection, and testing of the materials, he concluded that there was some upper bolts have hammer marks on them? 696 (pa.super. 1982). mr. decker did not have the opportunity to earn sales commissions ordeal? respondeat superior is the foundation of liability; making the award; and (3) whether the damage restatement (second) of torts § 332; see rudy v. a-best products co., $923,000 pumpaction expected that with his knowledge and experience, mr. decker jury verdict form, 11/24/10, at 4-5. physical evidence or subjective evidence; the fact of actual interference or exercise of control by the that the contractor is independent in the manner of as we noted in hyrcza, administrator under various theories of liability. the case proceeded to trial, - 3 - what i used to do.” id. at 871. he cannot earn the commissions that he j-a05013-12 ground and “in a tremendous, tremendous amount of pain . . . in so much - 22 - we now address consol’s request for a new trial as to liability because employer and the agency that administered the test in connection with its thus, while mr. gillingham worked at its site, consol management did we now address consol’s contention that it should have been granted _______________________ were just hanging by a thread[.]” id. at 478. he substantiated that the and was restricted from lifting more than thirty pounds and walking on 970 a.2d 1159, 1176 (pa.super. 2009). we will not find a - 34 - emergency situations, he charged $750 a day plus expenses. his material generate power from waste coal. mr. farnham was attempting to sell that joseph, supra at 472. “broadly stated, if the contractor is proceed to question a.4. adopted august 4, 2004 and made effective december 1, 2004. that rule substantially from what could be reasonable extremities and my lower left extremities, because i sustained a lot of speculation. whether to purchase it. 602. mr. decker’s assigned sales area was the entire united states because j-a05013-12 generally accepted that an exculpatory clause is valid where three conditions which is called a backing plate. the inside backing plate for the staircase in employee of an independent contractor, [plaintiff] was a business invitee at own employee.” an employer “is declared to be synonymous with master” shoulder problem was also treated with steroids, and mr. gillingham was performance upon such premises of a part of the employer's regular and asked to work on a project as its employee. the project base was sign some documents. mr. gillingham testified that consol indicated that he 1991)). herein, the award of $100,000 to that plaintiff for lost past earnings drayham automation. in 2006, he was contacted by technical solutions a.3d 1, 8 (pa.super. 2011) (quoting antz v. gaf materials corp., 719 q. were the hammer marks on the inside of the upper bolt? deterioration of the metal. id. at 313. once metal displays any type of the building by four bolts. the upper two bolts were load-bearing that took verdict on the matter was based upon sufficient evidence. personal injuries is to be compensatory and compensatory only. - 18 - plate, he would have obtained a structural engineer and removed the bolts stair collapse, took numerous photographs of those materials, and was terminated, the employee sued both his employer and the polygraph j-a05013-12 j-a05013-12 past loss of ability to enjoy the pleasures of life $300,000 inside backing plate displayed signs of rust. dr. kasraie continued that rust stated that he lost business from key bellevilles. following: engage in family activities as he did before the fall. mrs. gillingham had to ____________________________________________ h. whether consol is entitled to a new trial because the trial part, or none of the evidence and to determine the credibility of the mr. gillingham, who was under contract to provide services on the project, mr. decker began in-home physical therapy and started to use crutches. designated mr. gillingham as an independent contractor of consol. consol is a. it’s come to like a halt. it’s been hard. this has had an sufficient competent evidence to sustain the verdict. judgment employment, and that any testimony to that effect was merely based upon h. we will then return to resolve all contentions concerning damages. david gillingham and debra reject consol’s request for judgment nov as to all plaintiffs. (footnote continued next page) against known dangers, but also against those which might be discovered actions for 25.5 years, a significant period that supports the amount of the anticipated earning with pumpaction. he continued with physical therapy. son, and had a busy work schedule. in addition to working for his consulting considered excessive or shocking. the couple is no longer able to engage in against the danger. where the trial court entered a nonsuit in favor of both defendants at trial connection, the need to address the remaining issues would be obviated. right to do the work according to his own initiative, we now outline the basis for consol’s liability herein. messrs. pa.super. 287, 44 a.2d 852, 853–854 (1945). “a master is one 19. you are instructed that an expert cannot be permitted to event he was injured due to its negligence. he felt that he had to sign the aware that his arm was broken. mr. gillingham asked to be taken to the as a whole is inadequate or not clear or has a tendency to employment with technical solutions due to the surgeries. he documented a possessor of land is subject to liability for physical harm lost earning and earning capacity ‘evidence’ offered by mr. gillingham was the street from him and required twenty-four-hour care due to serious heart themselves and as evidenced from photographs of those items, the them. this case bears no resemblance to that relied upon by consol. experienced frozen shoulder syndrome, which is when the socket shrinks 1.) the severity of the injury; id.; restatement (second) of torts § 343. me, and they don’t even – they don’t quote this stuff out. they just call


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