In DeFranco v. Albino, No. 1868 EDA 2014 (Pa. Super. Ct. Jan. 6, 2016)., the Superior Court of Pennsylvania affirmed a $2.3 million judgment in favor of a construction worker who was injured when a concrete-pumping hose hit him in the head and knocked him off a wall.

On March 22, 2010, DeFranca was building foundations and footings at new homes, and was standing atop a 9′ wall  to pour cement.  The hose from the concrete pump trunk clogged, and the concrete pump truck operator increased the pressure on the pump to unclog it.  However, he did not signal to DeFranca to put the hose down and get out of the way.  Due to the additional pressure, the hose was thrown from side to side and hit DeFranca in the head, causing him to fall off the wall and drop into a basement.

DeFranca identified the concrete pump truck owned by 5 Star Concrete Pumping, LLC as the pump truck involved in his accident.  5 Star was a concrete pumping service formed in 2007 by Mr. Franks and Mrs. Franks.  Prior to forming 5 Star to provide concrete pump truck services, Mr. Franks owned and operated concrete pump trucks through his ready-mix concrete delivery business, Trans-Fleet.  Trans-Fleet and 5 Star shared a business address, employees, and operated out of the same office space.  When customers called Trans-Fleet, they could order concrete and a concrete pump truck all at once. The concrete was provided by Trans-Fleet.  Trans-Fleet employees would provide a concrete pump truck exclusively by 5 Star.  Both businesses had separate invoicing systems, bank accounts, and tax returns. Mr. Franks personally trained all 5 Star concrete pump truck operators.

On appeal, Trans-Fleet raised four issues.  First, Trans-Fleet argued the issue of an agency relationship between it and 5 Star should not have been submitted to the jury because it was not properly pleaded.  The Court opined that the allegations in the complaint were sufficient to put Trans-Fleet on notice that it had to defend against an agency theory.  The complaint included several paragraphs asserting Trans-Fleet was liable based on the negligence of its agents.

Trans-Fleet’s second argument was that DeFranca did not introduce evidence that a 5 Star truck was at the construction site on the day of the accident.  However, the Court found that the trial court noted ample evidence, including testimony from DeFranca identifying a truck pictured in an exhibit as matching the one at the site.

Trans-Fleet’s third argument was that the trial court improperly excluded GPS evidence that allegedly indicated a 5 Star vehicle was not in the vicinity of the accident.  On this point, the Court determined that Trans-Fleet failed to present a proper witness to testify as to the authenticity of the GPS records.  Furthermore, Trans-Fleet’s counsel also agreed prior to trial that the records were not admissible without testimony from a representative of the third-party company that created the GPS records.

In its final issue on appeal, Trans-Fleet argued the issue of negligent training was improperly submitted to the jury.  Trans-Fleet maintained that the company did not have to train 5 Star employees because the companies were separate entities.  Again, the Court found the trial court’s opinion well supported by the evidence.Although a non-precedential decision, the Court’s analysis of crucial concepts such as agency and the exclusion of evidence is instructive.

Thanks to Hillary Ladov for her contribution to this post.  Please email Brian Gibbons with any questions.