Pennsylvania: Defense Award in Binding Arbitration in Construction Accident Case

11/20/14

Jerry Kessler v. Wardlaw Fence, LLC., et al, CCP, Phila. County, PA, February Term, 2012, No. 02934

Daniel J. Rucket, a partner in the Philadelphia office of Rawle & Henderson LLP, received a defense award at a binding arbitration in a construction accident case venued in Philadelphia County.  On September 5, 2010, experienced carpenter Jerry Kessler was working alone and using a Ridgid Heavy Duty 10-inch portable table saw to install flooring at a hair salon in Philadelphia.  As Kessler used the saw, he cut and severed several fingers on his left hand.

Rawle & Henderson LLP's client, Wardlaw Fence, had been retained to install a hardwood floor at the salon. Wardlaw Fence owner Kahlil Wardlaw purchased the new saw from Home Depot at the beginning of the project.  Wardlaw assembled the saw at the salon and used it for several days without experiencing any problems with it.  The saw and all of its components, including the blade guard, the instruction manual, and the box for the saw, remained at the salon during the entire course of the project.

Wardlaw Fence hired Kessler, who had approximately 35 years of carpentry experience, to stain the floor.  On the date of the incident, Kessler insisted on cutting several small pieces of wood to complete the installation of the floor before proceeding to stain it.  Wardlaw instructed Kessler to use a miter saw on site for this purpose before Wardlaw left the job site.  The blade guard was on the Ridgid saw, covering the blade, when Wardlaw left Kessler at the salon.

According to Mr. Kessler, there was no blade guard in place on the saw when he arrived that morning.  Kessler claimed to have looked for the blade guard for 15 minutes and to have called Wardlaw when he could not find it.  Wardlaw denied receiving any call about the allegedly missing blade guard.  After allegedly failing in his quest to find the blade guard, Kessler proceeded to use the saw without the blade guard in place.  Kessler testified at deposition that he looked at the first and second pages of the instruction manual and looked at the warning labels on the saw.  One label conspicuously stated “WARNING” and instructed users to keep the blade guard in place and their hands away from the blade.

Kessler admitted at deposition that he used table saws without the blade guard many times, estimating that he had used the blade guard on table saws less than half the time he used them during his 35-year carrier as a carpenter.  Kessler claimed that he made 30 to 40 cuts that day with the saw.  He did not have any problems with the saw, except for a little “play” in it, causing some of his cuts not to be exact.  There were no kickbacks of the boards, and the rip fence used to help guide the saw through the blade did not move.

The accident occurred when Kessler intended to rip a board to install under a radiator.  He claimed that he adjusted the rip fence and locked it in place.  Kessler alleged that as he began guiding the board, using his left hand to stabilize the board and using a push stick in his right hand to guide the board forward, the rip fence suddenly “flew off” the saw, landing on the floor.  Kessler lost his balance and the blade dragged the board and his left hand into the saw blade, severing two of his fingers and damaging a third.  Kessler called Wardlaw to inform him of the accident.  Wardlaw returned to the salon and observed the rip fence securely in place on the saw and the blade guard lying on the floor nearby.

Kessler underwent one surgery to repair his hand at Thomas Jefferson University Hospital.  He had several follow-up visits at the Philadelphia Hand Center, followed by a program of self-directed physical therapy.  Kessler also claimed to have continuing neuropathic pain in his left hand.

Due to limited insurance coverage and questionable liability, the parties agreed to a binding arbitration.  The arbitration was held on June 3, with Kessler and Wardlaw testifying.  Kessler contented at the arbitration that the blade guard was missing and that the rip fence moved because Wardlaw had not properly tightened the adjusting nut that secured the rip fence to the rear rail of the saw.

Rawle & Henderson LLP argued that there was no evidence of any negligence on the part of Wardlaw Fence.  All of the component pieces of the saw, including the blade guard and the rip fence, were properly assembled.  Wardlaw properly tightened the adjusting nut, as confirmed by expert inspection of the saw.  Wardlaw used the saw for several days without the rip fence moving.  The blade guard was in place over the blade when Wardlaw left the salon.  We contended that there was no duty on the part of Wardlaw Fence to train Kessler, an independent contractor, about using the saw with the blade guard and ensuring that the rip fence was locked in place.  We argued that Kessler, not Wardlaw, removed the blade guard.

We brought the saw to the arbitration and demonstrated that it was not possible for the rip fence to fly off if locked.  If the rip fence moved, and flew completely off the saw as claimed by Kessler, it was due to Kessler not locking it in place, not the adjusting nut at the rear of the rip fence as claimed by his liability expert.  Rawle & Henderson LLP argued that Kessler’s own comparative negligence precluded his recovery. After hearing almost a full day of testimony and argument at the arbitration, the arbitrator found in favor of Wardlaw Fence.

Daniel J. Rucket concentrates his practice in general casualty defense litigation, including construction site accidents, premises liability, catastrophic injury, construction defects, products liability, stucco home water infiltration claims, motor vehicle accidents, subrogation defense, and general negligence.  He graduated from the William & Mary Law School in 1993 and subsequently clerked for the Honorable Albert R. Subers in the Montgomery County Court of Common Pleas.  Dan is admitted to practice in Pennsylvania, the U.S. District Courts for the Eastern and Middle Districts of Pennsylvania, and the Third Circuit Court of Appeals. He has been selected as a Pennsylvania Super Lawyer every year since 2010.  He was selected as a Pennsylvania Rising Star in 2005, 2006 and 2007.