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Von Der Stuck v. Apco Concrete, Inc.

Judgment entered in favor of defendants in strict liability and negligence action reversed because court erred in refusing to permit plaintiffs' expert witness to testify regarding plaintiffs' failure to warn claim.

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� 1 Appellants, Mark and Linda Von Der Stuck, appeal from the judgment entered against them following the denial of their post-trial motions. Upon review, we reverse.

� 2 The trial court summarized the facts of this strict liability and negligence action as follows:

Plaintiff, Mark Von Der Stuck, was injured on November 8, 1995, near the Ridley Township garage facility in Delaware County, Pennsylvania, while attempting to remove a thirty-five foot tall tree. Plaintiff, a Ridley Township employee, acting at the direction of his foreman, John Lewis, was clearing, with fellow Township employees, a site upon which a salt storage shed was to be erected by Defendant Apco Concrete Inc. (hereinafter, Apco). While previously excavating the site for construction of the shed, Apco had removed some soil from the base of the tree exposing about one-third of its roots. On the instructions of Mr. Lewis, Plaintiff told his co-workers to wrap two nylon slings around the tree and secure them with a ten pound metal hook connected to a winch on the front bumper of a Township electrical utility truck. None of the Township employees present undertook to ascertain how much force was necessary to remove the tree from the ground. The metal hook on the winch was connected to the apparatus by a polyester rope. Plaintiff, standing by the front of the truck and alongside the winch, warned his co-workers to stand clear of the winch while he initiated hydraulic operation of the winch and the tightening of the rope. He was some fifty feet from the tree as the rope continued to tighten. The nylon slings around the tree then tore apart and the polyester rope together with the hook snapped back striking the Plaintiff, and causing laceration of his left leg.

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