Construction Workers Can't Sue Each Other

February 7, 2003 ( - A Pennsylvania appeals court has ruled that two construction workers employed by different subcontractors can't sue each other for negligence because they were legally co-workers .

The Pennsylvania Superior Court said that since the Pennsylvania Workers’ Compensation Act (WCA)   bars workers from suing their employers for an on-the-job injury, workers shouldn’t be able to sue co-workers either, according to a Legal Intelligencer story. Those claims are supposed to be handled through the WCA, the Superior Court said.

The Superior Court decision affirmed a ruling from the Philadelphia Common Pleas Court for all defendants.

Case Background

According to the court, James O’Donnell worked for Len Parker Associates Inc. as a master steamfitter. He was injured while working on a job site. RM Shoemaker & Co. was the general contractor for the job. Fluidics was the subcontractor and subcontracted some of its work to Len Parker Associates.

On the day of the accident, O’Donnell was carrying a 21-foot, 300-pound steel pipe, assisted by Jerome Penn, a Fluidics employee, and James Parramore, whose employment affiliation was not stated in the opinion.

Stevens said the pipe was suddenly dropped, pinning Parramore against a wall in what the court called a life-threatening situation. O’Donnell lifted the pipe off Parramore and suffered a herniated disc in the process, according to court documents.

O’Donnell and his wife sued alleging that Penn was negligent in dropping the pipe and seeking damages from Fluidics and Shoemaker in addition to Penn.

In court documents, the defendants argued that the WCA offered the exclusive remedy for the O’Donnells’ claims. The trial court agreed.

In the appeal to the Superior Court, the O’Donnells conceded that their recovery from Shoemaker and Fluidics was limited to the WCA, because they were O’Donnell’s statutory employers. However, they argued that the same was not true of their claims against Penn, as Penn was not in the “same employ” as O’Donnell, nor was he O’Donnell’s statutory co-employee.

Section 72 of the Workers Compensation Act protects from liability a person who commits an act or omission that results in disability or death “while such person was in the same employ as the person disabled or killed except for intentional wrong.”

The Superior Court said it also did not make sense to “segregate” two employees at the same site on the basis that one was paid by Len Parker Associates and the other by Fluidics.

“Once each passed the perimeter and arrived at work, whoever may have sent them to their place of employment becomes immaterial, since each was equally subordinate to the on-the-job control of the general contractor,” the appeals court ruled.

The case is O’Donnell v. R.M. Shoemaker & Co.