discussing which company controlled a truck driver when one company leased his truck and driving services for work on its property from another company, and holding that “[t]he crucial test in determining whether a servant furnished by one person to another becomes the employe[e] of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also to the manner of performing it”
How later courts described this case
- discussing which company controlled a truck driver when one company leased his truck and driving services for work on its property from another company, and holding that “[t]he crucial test in determining whether a servant furnished by one person to another becomes the employe[e] of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also to the manner of performing it”
- “Although opinions considering [the identity of the employer] frequently mention such items as which employer actually hired the servant, and which paid his wages, and which,issued his W-2.Form, these are peripheral matters and are not controlling.”
Written by the judges who cited it.
The opinion
BROSKY, Judge,
concurring:
I agree with the majority generally that Sharon Steel Corporation does not qualify as a statutory employer under the Workmen’s Compensation Act. 77 P.S. § 52. 1 I also share the view that a relationship existed between Donald Ashman and Sharon Steel such that a duty of care arose resulting in Sharon Steel’s liability to Ashman for damages resulting from Sharon’s negligence if that duty of care was breached. I believe somewhat more discussion on this point is helpful. Finally, I wish to address the issue raised by Sharon Steel that the damages awarded were excessive.
*320 A business invitee is defined in the Restatement 2d of Torts, § 332(3) 2 as:
§ 332. Invitee Defined
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
The Comment to Subsection (3) states in relevant part:
e. Two classes of business visitors. Business visitors fall into two classes ....
The second class includes those who come upon land not open to the public, for a purpose connected with business which the possessor conducts upon the land, or for a purpose connected with their own business which is connected with any purpose, business or otherwise, for which the possessor uses the land. Thus a truck driver from a provision store who enters to deliver goods to a private residence is a business visitor; and so is a workman who comes to make alterations or repairs on land used for residential purposes.
Thus because Ashman was employed to perform certain tasks which benefitted Sharon Steel on Sharon Steel’s property, he was a business invitee. The fact that Ashman was injured while performing a task for which he was not specifically hired I do not believe affects his status as a business invitee. Ashman, after all, was commanded by an agent of Sharon Steel to assist in the repair of a crane which was vital to the loading of Ashman’s truck.
It is beyond cavil that the duty of care owed to a business invitee by a property owner is stated in Restatement of Torts 2d §§ 341A and 343.
§ 341A Activities Dangerous to Invitees
A possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only *321 if, he should expect that they will not discover or realize the danger, or will fail to protect themselves against it.
Section 343 indicates what dangers a possessor of land is expected to know or discover.
§ 343 Dangerous Conditions Known to or Discoverable by Possessor
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Liability is limited, however, in § 343A. The possessor is not liable to the invitee for injuries which result from “any activity or condition on the land which is known or obvious to them, ...” id.
In McKenzie v. Cost Bros. Inc., 487 Pa. 303, 309-310 , 409 A.2d 362, 365 (1979), our Supreme Court said in its discussion of the standard of care owed an invitee:
This was also aptly pointed out by Professor Prosser in his treatise.
The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it. W. Prosser, Handbook of the Law of Torts (4th ed.1971) p. 180.
Two comments to section 343 are particularly germaine to the instant discussion. Comment (d) provides:
d. What invitee entitled to expect. An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein. Therefore an invitee is *322 not required to be on the alert to discover defects which, if he were a mere licensee, entitled to expect nothing but notice of known defects, he might be negligent in not discovering. This is of importance in determining whether the visitor is or is not guilty of contributory negligence in failing to discover a defect, as well as in determining whether the defect is one which the possessor should believe that his visitor would not discover, and as to which, therefore, he must use reasonable care to warn the visitor.
Restatement (Second) of Torts, § 343, Comment (d) (1965). Comment (e) provides in pertinent part:
(e) Preparation required for invitee. In determining the extent of preparation which an invitee is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance.
Restatement (Second) of Torts, § 343, Comment (e) (1965).
Accordingly, Sharon Steel owed Ashman a reasonable standard of care to protect him from dangers which, quite naturally were associated with the procedure of loading trucks, and about which Ashman would be unaware. I would hold that it was reasonably foreseeable that Ashman would aid a Sharon Steel employee in the process related to loading his truck if he was asked to do so. Thus, Sharon Steel owed a duty of reasonable care to Ashman to assure that he not be injured by equipment in need of repair. Clearly, that duty was breached and Sharon Steel was properly found to be negligent.
Sharon Steel’s final contention is that the damages awarded to the Ashmans was excessive. In Kravinsky v. Glover, 263 Pa.Super. 8, 25-26 , 396 A.2d 1349, 1358 (1979), we said:
Turning to appellant’s contention that the verdict is excessive we note that in Skoda v. West Penn Power Co., 411 Pa. 323, 338 , 191 A.2d 822, 830 (1963), our Supreme Court stated:
*323 “Appellate courts are properly reluctant to interfere with jury verdicts in personal injury cases, which verdicts are supported by the opinion and approval of the trial judge and the court en banc. Roadman v. Bellone, [379] 479 Pa. 483 , 108 A.2d 754 (1954). The granting of refusal of a new trial because of excessiveness is preculiarly within the discretion of the court below and we will not interfere, absent a clear abuse of discretion. Hall v. George, 403 Pa. 563 , 170 A.2d 367 (1961). We will not hold that a verdict is excessive unless it is ‘so grossly excessive as to shock our sense of justice.’ Kane v. Scranton Transit Co., 372 Pa. 496 , 94 A.2d 560 (1953), and cases cited therein.” In Robert v. Chodoff, [259] Pa.Super. [332], [366], 393 A.2d 853, 871 (1978), we outlined some of the factors relevant in determining whether a verdict is excessive.
“(1) the severity of the injury, (2) whether plaintiff’s injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will affect the plaintiff permanently, (4) whether the plaintiff can continue with his employment, (5) the size of plaintiff’s out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.” (footnote omitted.) See Kemp v. Philadelphia Transportation Co., 239 Pa.Super. 379 , 361 A.2d 362 (1976). Mere disparity between the amount of the verdict and out-of-pocket expenses is not in itself sufficient grounds to disturb a verdict. In Carminati v. Philadelphia Transportation Company, 405 Pa. 500 , 176 A.2d 440 (1962), our Supreme Court upheld an award of $79,500 although medical expenses were less than $200. Similarly, we have sustained a verdict of $25,000 although medical expenses totalled only $549.60. Simmons v. Mullen, supra, 231 Pa.Super. [199] at 215, 331 A.2d [892] at 901.
Applying the above standard to the instant case, we find that, Mr. Ashman has suffered a permanent disability to his left arm affecting his ability to rotate his arm. This malady will affect his ability to continue his employment as a truck *324 driver. While he can continue to drive a vehicle, he will not be able to operate the kind for which he was trained. This will result in substantial lost earnings. Furthermore, Mr. Ashman continues to suffer pain associated with the injury and evidence was submitted that his pain in all likelihood will persist. Testimony also supports Ms. Ashman’s award for loss of consortium. While Mr. Ashman has suffered only nominal out-of-pocket expenses for his injuries, I would hold that his loss of earnings, his pain and Ms. Ashman’s loss of consortium when considered together justify the award. I do not find the award so excessive as to shock my sense of justice. I cannot find, under these circumstances, that the trial court clearly abused its discretion.
I concur in the opinion of the majority to affirm the order of the court below.
. I am satisfied specifically that Ashman was not a “loaned employee” to Sharon Steel thereby qualifying Sharon Steel as a statutory employer. Lane v. Schucht, 260 Pa.Super. 68 , 393 A.2d 1015 (1978).
. Pennsylvania courts have adopted § 323 as the law in Pennsylvania. See Restatement 2d of Torts, Appendix § 332.