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Grant of Summary Judgment to Premises/Employer Defendant Upheld on Appeal

Superior Court of Pennsylvania, June 23, 2022

In this asbestos action, decedent John Wheeler alleged asbestos exposure from his work as a millwright at a U.S. Steel (USX) plant. Wheeler’s co-workers testified in this matter as Wheeler passed away before he could be deposed. The trial court granted USX’s motion for summary judgment and the plaintiff subsequently appealed the trial court’s decision.

The plaintiff first appealed the trial court’s determination that an employee was not a business invitee. The appellate court first established that the plaintiff’s claims could not be determined under the strict liability standard of Eckenrod as the plaintiff brought his negligence claims against USX as a landowner. The court set forth that “[t]he standard of care a possessor of land owes to one who enters upon the land depends upon whether the latter is a trespasser, licensee, or invitee” as per Gutteridge. Thereafter, the court noted that the plaintiff conceded this point and analyzed the matter under the Tooey negligence standard.

In addition, the appellate court agreed with the trial court’s finding that the plaintiff “failed to establish a prima facie case of negligence against defendant USX.” Indeed, the trial court found that the plaintiff failed to show a causal connection between Wheeler’s work at the USX plant and any exposure to asbestos. While the plaintiff submitted the deposition testimony of Wheeler’s co-workers, the trial court found the testimony speculative, as neither had personal knowledge of whether any products or materials Wheeler worked with contained asbestos. One co-worker testified that he believed packing and gaskets contained asbestos because he “could see it.” Another co-worker testified that he believed brake shoes contained asbestos “because of the heat they had to withstand and because they created a significant amount of dust. “ The trial court distinguished this speculative testimony from other cases where “a coworker testified he knew a product contained asbestos because it was labeled as containing asbestos,” including Harahan v. AC&S, Inc.

The plaintiff also contended that the trial court erred by excluding the plaintiff’s unauthenticated documentary evidence. The appellate court disagreed with the plaintiff, noting, “a trial court may exclude inadmissible evidence sua sponte.” Further, the court has “upheld a trial court’s refusal to consider evidence raised in opposition to a motion for summary judgment when the evidence was unauthenticated, unsworn, or unverified.” Finally, the appellate court found that the plaintiff waived its argument regarding the sufficiency of the plaintiff’s expert opinion as the plaintiff failed to put forth this argument in his appellate brief. Thus, the appellate court affirmed the trial court’s decision.

Read the full decision here.