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HomeMy WebLinkAbout90-3804 CivilJUNE L. FRAMPTON, Administratrix of the Estate of DONALD H. FRAMPTON, SR., deceased, and RICHARD BOAZ, Plaintiffs Ve DAUPHIN DISTRIBUTION SERVICES COMPANY, Defendant Ve PENNSYLVANIA POWER & LIGHT CO., Additional Defendant Vo SHANE CONSTRUCTION, INC., Further Additional Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 3804 CIVIL TERM 1990 IN RE: MOTION OF DEFENDANT DAUPHIN DISTRIBUTION SERVICES COMPANY AND ADDITIONAL DEFENDANT SHANE CONSTRUCTION COMPANY, INC., FOR JUDGMENT ON THE PLEADINGS BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this ~%~ day of May, 1996, after careful consideration of the joint motion of Defendant Dauphin Distribution Services Company and Additional Defendant Shane Construction, Inc., for judgment on the pleadings, and for the reasons stated in the accompanying opinion, the motion is DENIED. BY THE COURT, 'Wesley Oler~r., J. '' Barry L. Gross, Esq. Michael J. Stief, III, Esquire 547 East Washington Avenue Newtown, PA 18940 Attorneys for Plaintiffs Paul W. Grego, Esq. 101 North Front Street Harrisburg, PA 17101 Attorney for Defendant Dauphin Distribution Services Company and for Further Additional Defendant Shane Construction, Inc. Charles E. Wasilefski, Esq. 2931 North Front Street Harrisburg, PA 17110 Attorney for Defendant Pennsylvania Power and Light Co. : rc JUNE L. FRAMPTON, Administratrix of the Estate of DONALD H. FRAMPTON, SR., deceased, and RICHARD BOAZ, Plaintiffs Ve DAUPHIN DISTRIBUTION SERVICES COMPANY, Defendant Vo PENNSYLVANIA POWER & LIGHT CO., Additional Defendant Ve SHANE CONSTRUCTION, INC., Further Additional Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 3804 CIVIL TERM 1990 IN RE: MOTION OF DEFENDANT DAUPHIN DISTRIBUTION SERVICES COMPANY AND ADDITIONAL DEFENDANT SHANE CONSTRUCTION COMPANY, INC., FOR JUDGMENT ON THE PLEADINGS BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT Oler, J. This consolidated negligence case arises out of an accident in which scaffolding being moved by two employees of a subcontractor engaged to install materials on a building under construction came into contact with an overhead electric wire at the construction site. One worker was electrocuted, and the other killed. Plaintiffs are the deceased employee's personal representative and the injured employee. Parties alleged to be liable for the death and injury include the owner of the construction site and the general contractor. NO. 3804 CIVIL TERM 1990 As a general rule, one who engages an independent contractor will not be liable in tort for physical harm occasioned by accidents in the performance of the work.~ Citing this principle, the owner and general contractor have filed a joint motion for judgment on the pleadings. Arguments offered by Plaintiffs in opposition to the motion include the contention that an exception to the general rule regarding independent contractors known as the "peculiar risk doctrine" is applicable to this case. Because the pleadings are less than conclusive on the matters involved, the motion will be denied. STATEMENT OF FACTS Pertinent allegations in the pleadings may be summarized as follows: Plaintiff June L. Frampton, Administratrix of the Estate of Donald H. Frampton, Sr., deceased, is an individual, citizen and resident of the Commonwealth of Pennsylvania, residing at 141 Valley Street, Lewistown, Pennsylvania.2 Plaintiff Richard Boaz is a citizen and resident of the Commonwealth of Pennsylvania, residing at 329 Logan Street, Lewistown, Pennsylvania.3 Defendant Dauphin Distribution Services Company (hereinafter DDS) is a corporation having its registered office at 5023 Trindle See Restatement (Second) of Torts ~409 (1965). Plaintiff Frampton's complaint, paragraph 1. Plaintiff Boaz's complaint, paragraph 1. 2 NO. 3804 CIVIL TERM 1990 Road, Mechanicsburg, Pennsylvania.4 At all times relevant to the accident in question, Defendant DDS owned and was "in occupation of and/or entitled to control" certain premises (where the accident occurred) on Salem Church Road in Hampden Township, Cumberland County, Pennsylvania.5 Additional Defendant Shane Construction, Inc. (hereinafter Shane) is a Pennsylvania corporation with its offices and principal place of business at 5256 East Trindle Road, Mechanicsburg, Pennsylvania.6 Shane was the general contractor on the construction project at the said premises.7 The accident referred to above occurred on Wednesday, December 8, 1988, at approximately 10:00 a.m.8 At that time, Plaintiff Frampton's decedent and Plaintiff Boaz were engaged in their usual occupations as sheet metal workers for their employer, R.A. Marker & Sons Steel Erector Company (hereinafter Marker), participating in 4 Plaintiff Frampton's complaint, paragraph 2; Plaintiff Boaz's complaint, paragraph 2. 5 Plaintiff Frampton's complaint, paragraph 9; Plaintiff Boaz's complaint, paragraph 5. 6 Complaint of Additional Defendant Scholl, Sowers and Associates, Inc. v. Further Additional Defendant Shane Construction, Inc., paragraph 2. 7 Defendant Dauphin Distribution Services Company's Complaint To Join Additional Defendant, Exhibit B. 8 Plaintiff Frampton's complaint, paragraph 1; Plaintiff Boaz's complaint, paragraph 2. NO. 3804 CIVIL TERM 1990 the construction of a building on the premises.9 At the time of the accident, Plaintiff Frampton's decedent, Plaintiff Boaz and several of their co-workers were attempting to maneuver a scaffolding apparatus on the construction site when the scaffolding came into contact with a high voltage overhead electric power line.~° This contact resulted in the death of Plaintiff's decedent, and severe personal injuries to Plaintiff Boaz.~ The power line was not insulated nor was any warning posted or safety device installed upon or around the power line.~2 Plaintiffs ' pleadings incorporate, among others, the principles set forth in Sections 416 and 427 of the Restatement (Second) of Torts (1965) , pertaining to liability under the peculiar risk doctrine: The negligence of defendant [DDS], its agents , servants , employees or representatives, consisted of the following: gg. Failure to recognize that the construction work was likely to create during its progress a peculiar risk of physical harm to others unless special precautions 9 Plaintiff Frampton's complaint, paragraph 4; Plaintiff Boaz's complaint, paragraph 3. ~0 Plaintiff Frampton's complaint, paragraph 5; Plaintiff Boaz's complaint, paragraph 4. ~2 Plaintiff Frampton's complaint, paragraph 14(a), (b), (d); Plaintiff Boaz's complaint, paragraph 10(a), (b), (d). NO. 3804 CIVIL TERM 1990 were taken; hh. Failure/carelessness of the contractor to exercise reasonable care to take such special/specific and/or adequate precautions even though said precautions have been provided for in the contract or otherwise; ii. Failure/carelessness in recognizing in advance, that the construction work involves a special danger/risk of physical harm to others which is inherent in the work itself, or normally to be expected in the ordinary course of the usual or prescribed way of doing it, or that the defendant has reason to contemplate such a risk when making a contract under the particular circumstances under which the work is to be done and the aforesaid contractor fails to take reasonable precautions against such danger.~3 The motion for judgment on the pleadings filed by DDS and ~3 Plaintiff Frampton's complaint, paragraph Plaintiff Boaz'$ complaint, paragraph 10(gg-ii). 14(gg-ii); Plaintiffs also advance a theory of negligence based on Sections 342 and 343 of the Restatement (Second) of Torts (1965). Plaintiff Frampton's complaint, paragraph 12; Plaintiff Boaz's complaint, paragraph 8. Plaintiffs' theory in this regard is that a duty owed to Plaintiff Frampton's decedent and Plaintiff Boaz as business invitees, or, in the alternative, as licensees was breached. Plaintiff Frampton's complaint, paragraph 12, 14(a-dd, hh, jj-kk); Plaintiff Boaz's complaint, paragraph 8, 10(a-dd, hh, jj-kk). Plaintiffs' assert an additional theory of liability in accordance with Section 410 of the Restatement (Second) of Torts (1965). Plaintiff Frampton's complaint, paragraph 12; Plaintiff Boaz's complaint, paragraph 8. This claim is based upon the premise that negligent orders were given by Defendant Shane to the workers. Plaintiff Frampton's complaint, paragraph 14(cc-jj); Plaintiff Boaz's complaint, paragraph 10(cc-jj). Finally, Plaintiffs assert a theory of negligence based on Section 413 of the Restatement (Second) of Torts (1965). Plaintiff Frampton's complaint, paragraph 12; Plaintiff Boaz's complaint, paragraph 8. This claim is premised upon an alleged breach of a duty to take contractual precautions against the dangers involved in the work in question. Plaintiff Frampton's complaint, paragraph 14(a-kk); Plaintiff Boaz's complaint, paragraph 10(a-kk). NO. 3804 CIVIL TERM 1990 Shane responds to Plaintiffs' reliance upon the peculiar risk doctrine as follows: 11. Plaintiffs merely averred in their Complaint that the doctrine of special danger or peculiar risk applies to create potential liability in DDS and Shane because the work of Marker included the movement of scaffolding about and around utility poles and lines by its employees. 12. Plaintiffs failed to allege any facts which would establish, or from which it could be inferred, that the scaffolding movement around such fixtures was "substantially" out of the ordinary risk involved in the installation of insulation and sheet metal to structural steel for which Marker was employed by Shane to perform. 13. Moving such scaffolding about and around utility poles and lines is normally contemplated in this type of work. 14. The risk of contacting scaffolding with utility lines is an ordinary risk associated with the movement of a high scaffold incidental to the installation of insulation and sheet metal to structural steel on a building involving this type of construction. 15. Plaintiffs have failed to aver "material facts" on which the alleged cause of action is based and rely generally on the special danger or peculiar risk doctrine.TM ~4 Motion of Defendant Dauphin Distribution Services Company, and Additional Defendant Shane Construction, Inc., for judgment on the pleadings, paragraphs 11-15 (citation omitted). 6 NO. 3804 CIVIL TERM 1990 DISCUSSION Judqment on the pleadinqs. Pennsylvania Rule of Civil Procedure 1034 provides the following: (a) After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. (b) The court shall enter such judgment or order as shall be proper on the pleadings. It is well settled in Pennsylvania that a motion for judgment on the pleadings should be granted only in cases where there are no issues of material fact and which are so free from doubt that a trial would clearly be a fruitless exercise. 3 Goodrich Amram 2d S1034(b):2, at 161-62 (1991). As a general rule, one who engages an independent contractor is not liable in tort for physical harm occasioned by accidents in the performance of the work.~s "[O]ne exception to the general rule of nonliability is when the owner or employer of the independent contractor retains significant control over work delegated to the contractor .... [A]nother exception to the general rule lies where there exists a 'peculiar' or 'special' danger in the work." Lorah v. Luppold Roofing Co., Inc., 424 Pa. Super. 439, 442, 622 A.2d 1383, 1384 (1993). The latter exception, known as the peculiar risk (or special See Restatement (Second) of Torts §409 (1965). NO. 3804 CIVIL TERM 1990 danger) doctrine is expressed in sections 416 and 427 of the Restatement (Second) of Torts (1965), as follows: ~ 416. Work Dangerous in Absence of Special Precautions One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise. ~ 427. Negligence as to Danger Inherent in the Work One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger. In Ortiz v. RA-EL Development Corp., 365 Pa. Super. 48, 528 A.2d 1355 (1987), the Pennsylvania Superior Court provided a test for determination of the existence of a special danger or peculiar risk. A special danger or peculiar risk exists where: (1) the risk is foreseeable to the employer of the independent contractor, "i.e., a reasonable person, in the position of the employer, would foresee the risk and recognize the need to take special measures, and (2) the risk is different from the usual and ordinary risk NO. 3804 CIVIL TERM 1990 associated with the general type of work done, i.e., the specific project or task chosen by the employer involves circumstances that are substantially out of the ordinary."~6 Application of the second prong of the test involves a two- step analysis. First, one must examine the risk that would be posed by the general type of work to be performed under typical circumstances. Second, a determination must be made as to whether the circumstances under which the general work was done, i.e., the specific project or task, introduce a different kind or level of risk.~7 The question of whether a peculiar risk exists is a matter for the court to decide before submission to the jury.~8 However, it is obvious that a proper consideration of the issue will often require a detailed examination of the facts surrounding a given accident, the specific duties undertaken by the independent contractor and the circumstances of the party engaging the independent contractor. See, e.g., Lorah v. Luppold Roofing Co., Inc., 424 Pa. Super. 439, 622 A.2d 1383 (1993). Similarly, the issue of whether a degree of control has been ~6 Ortiz v. RA-EL Development Corp., 365 Pa. Super. 48, 53, 528 A.2d 1355, 1358, appeal denied, 517 Pa. 608, 536 A.2d 1332 (1987). ~7 Id. ~8 Lorah v. Luppold Roofing Co., Inc., 424 Pa. Super. 439, 622 A.2d 1383 (1993). NO. 3804 CIVIL TERM 1990 withheld from an allegedly independent contractor so as to warrant imposition of liability upon the party engaging the contractor is generally resolvable only upon a detailed review of the facts of the case. See, e.g., Lutz v. Cybularz, 414 Pa. Super. 579, 607 A.2d 1089 (1992). Pleadings alone are particularly unsuited to the type of analysis required for these determinations. For this reason, such questions seem generally to be relegated to a later stage of litigation, where a more complete factual record exists. See, e.g., Lorah v. Luppold Roofing Co., Inc., 424 Pa. Super. 439, 622 A.2d 1383 (1993) (summary judgment); Lutz v. Cybularz, 414 Pa. Super. 579, 607 A.2d 1089 (1992) (same). A review of the pleadings in the instant case suggests the wisdom of such a course here. Although the court might suspect that the owner of the construction site will be absolved of liability under the principles discussed above, the various averments and responses in the pleadings of the several parties do not permit such a conclusion as a matter of law. Stated otherwise, the various averments and responses contained in the pleadings fail to show the absence of any issues of material fact which could warrant the entry of judgment on the pleadings in favor of either the owner or general contractor. 10 For these reasons, the following order will be entered:~9 ORDER OF COURT AND NOW, this 13th day of May, 1996, after careful consideration of the joint motion of Defendant Dauphin Distribution Services Company and Additional Defendant Shane Construction, Inc., for judgment on the pleadings, and for the reasons stated in the accompanying opinion, the motion is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Barry L. Gross, Esq. Michael J. Stief, III, Esquire 547 East Washington Avenue Newtown, PA 18940 Attorneys for Plaintiffs Paul W. Grego, Esq. 101 North Front Street Harrisburg, PA 17101 Attorney for Defendant Dauphin Distribution Services Company and for Further Additional Defendant Shane Construction, Inc. Charles E. Wasilefski, Esq. 2931 North Front Street Harrisburg, PA 17110 Attorney for Defendant Pennsylvania Power and Light Co. : rc ~9 Because of the court's disposition of this case, it is unnecessary to consider the applicability of Plaintiffs' alternate theories of liability. See note 13 supra.