The Drum Case

BY SHANNON P. DUFFY
U.S. Courthouse Correspondent
November 24, 2003

A Philadelphia Lawyer last week won a verdict of more than $7.8 million on behalf of a Pittsburgh construction worker who was wheelchair bound after he fell from a makeshift platform erected on a forklift. For plaintiff James T. Drum and his lawyer, Jonathan M. Cohen of Kline & Specter, the verdict marked another peak in a seven-year roller-coaster ride through courts that included two trials — one in which his claim was deemed rejected — and several appellate court decisions.

After a 1999 trial, an Allegheny County judge found that a jury rejected Drum's claim by finding that Drum himself was 58-percent responsible for the accident.

But on appeal, the Pennsylvania Superior Court ordered a new trial, finding that "it was reversible error to permit the jury to continue [its] deliberations and to record a verdict after it became painfully obvious that this jury was hopelessly confused."

In May 2001, the Pennsylvania Supreme Court ordered the Superior Court to study the case again, leading to a second lengthy Superior Court opinion that again ordered a new trial.

Now a second jury has decided that Drum was 10-percent responsible for the accident, and that most of the blame lay with employees of Shaull Equipment and Supply Co. According t court papers, Drum was employed as an installer by George Roth Heating and Plumbing, which was hired by Shaull in 1995 to install a radiant heating system in a 16,000-square-foot work facility in Bakerstown, Pa. Drum testified that when work began in January 1996, the managers at Shaull wanted the project to be completed quickly because it was already getting cold.

The "Solaraonics" heating system was to be installed at ceiling level, drum said, requiring workers to somehow ascend more than 12 feet to reach the 18-foot ceiling. Drum said that when he and a co-worker began discussing the erection of a rolling scaffolding, Shaull's general manager, Larry Brown, suggested that they instead use one of Shaull's forklifts in order to save time. Brown, he said explained that the forklift could be fitted with a wooden pallet to create a platform that could be raised. Cohen told the jury that Brown knew working on such a raised pallet violated workplace safety rules.

Drum, who has only a 10th grade education, tried to make the process safe, Cohen said, by ensuring that the forklift was stable and by kneeling down on the platform while it was being raised, standing upright only when it had stopped.

On Feb. 15, 1996, Drum was working on the pallet when a portion of an 80-pound pipe came loose from its coupler and started to fall on workers standing below. Drum testified that he yelled "Pipe falling!" and tried to catch the pipe, but that the weight was too great and pulled him off the pallet. Cohen said Drum fell head-first to the floor and suffered a burst fracture in his spine, resulting in quadriplegia. Drum will never walk again, Cohen said, and has only limited use of his upper body. Unable to use his fingers, he performs some tasks with utensils or tools strapped to his hands, Cohen said.

At trial, Cohen said he pursued two claims under the Restatement (Second) Torts. Under Section 392, Cohen argued that Shaull was liable for the accident because it provided a "chattel"— the forklift and pallet — to a contractor for use in contract work. Lawyers for Shaull argued that the forklift was supplied as a "favor" — a defense under Section 392 — but Cohen argued in court papers that "the defense of gratuitous supply applies only in the situation were where there is a pre-existing agreement that the contractor will supply his own instrumentalities. ... Here, no such agreement existed, despite defendants' assertions to the contrary."

Under Section 414, Cohen argued that Shaull was liable because Drum and his co-workers were "not entirely free to run their work as they saw fit." Cohen argued in his brief that Brown "actively involved himself" in the work, noting that Drum testified that Brown "was instructing me on a lot of things, on what to do, and he was watching the whole job constantly all the time."

In its verdict, the 12-member jury concluded that Brown was 50-percent responsible for the accident, and that Marlin Pentz a Shaull vice president, was 35-percent responsible. The jury decided that the remaining 15 percent of responsibility was shared by Drum, with 10 percent, and "unnamed" Shaull workers, with 5 percent.

The jury awarded Drum $6.5 million and, on a loss of consortium claim, awarded $1.375 million to his wife, Linda Drum.

Shaull's lawyer, Timothy D. Appelbe, did not return phone calls on Friday seeking comment. *