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HomeMy WebLinkAbout99-0117 CIVILTHE ESTATE OF ROBERT A. GOUSE, by MARGARET E. REISINGER, Administratrix, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW MILLER & NORFORD, INC.; LANDIS, INC.; STEEL BUILDINGS ERECTORS, INC.; and HERSHEY CREAMERY COMPANY, INC. Defendants NO. 99-0117 CIVIL TERM IN RE: MOTIONS FOR SUMMARY JUDGMENT OF DEFENDANTS HERSHEY CREAMERY COMPANY, INC., and MILLER & NORFORD, INC. BEFORE HOFFER, P.J., and OLER, J. OPINION and ORDER OF COURT OLER, J., April 9, 2002. In this wrongful death and survival action, the personal representative of a deceased worker has sued, among others, an owner of real estate and a general contractor which the owner had engaged to construct a building upon the property.~ Liability is premised upon negligence in the form of unsafe working conditions which allegedly resulted in the worker's death. For disposition at this time are motions for summary judgment filed by the owner and general contractor.2 ~ The case also includes other defendants. 2 See Motions for Summary Judgment of Defendants Miller & Norford and Hershey Creamery Company, Inc., filed October 19, 2001 (hereinafter Defendant's motion for summary judgment); see also Plaintiff's Response to Defendants' Motions for Summary Judgment, filed November 19, 2001 (hereinafter Plaintiff's answer to Defendant's motion for summary judgment). At oral argument on the motions,3 Plaintiff's counsel conceded the validity of the owner's motion. Accordingly, the motion for summary judgment filed by Defendant Hershey Creamery Company, inc., will be granted. The motion for summary judgment of the general contractor, Miller & Norford, Inc. (hereinafter Defendant) is premised upon (a) the immunity from common law liability for negligence afforded to a statutory employer under the Pennsylvania Workers' Compensation Act and (b) the absence of a duty on the part of Defendant to Plaintiff's decedent. Plaintiff's opposition to the motion is premised upon (a) Defendant's failure to meet the criteria for a statutory employer under the act and (b) the "peculiar risk" doctrine. For the reasons stated in this opinion, the motion of Defendant Miller & Norford, inc., for summary judgment will also be granted. STATEMENT OF FACTS The Pennsylvania Rules of Civil Procedure establish the standard of review for a motion for summary judgment: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2. Oral argument was held on February 13, 2002. 2 Under subparagraph (1) of Rule 1035.2, summary judgment may be granted if the material facts are not in dispute and "the moving party is entitled to judgment as a matter of law." Dean v. Commonwealth, 561 Pa. 503, 507, 751 A.2d 1130, 1132 (2000). In this context, "[t]he record must be viewed in the light most favorable to the [non-moving] party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Id. Under subparagraph (2) of Rule 1035.2, summary judgment may also be granted if the non-moving party has not offered evidence sufficient to support its burden of proof on a key element of the claim or defense. Young v. Commonwealth Dept. of Transp., 560 Pa. 373, 375-76, 744 A.2d 1276, 1277 (2000). The record, for purposes of disposition of a motion for summary judgment, includes the following materials: (1) pleadings, (2) depositions, answers to interrogatories, admissions and affidavits, and (3) reports signed by an expert witness that would, if filed, comply with Rule 4003.5(a)(1), whether or not the reports have been produced in response to interrogatories. Pa. R.C.P. 1035.1. For present purposes, the record consists of Plaintiff's amended complaint, Defendant's answer with new matter to Plaintiff's amended complaint, Plaintiff's reply to Defendant's new matter,4 Defendant's motion for summary judgment, Plaintiff's answer to Defendant's motion for summary judgment, the contract between the owner and Defendant general contractor,5 a contract between 4 See Amended Complaint, filed March 24, 1999 (hereinafter Plaintiff's amended complaint); Answer with New Matter and New Matter Crossclaims of Defendant Miller & Norford, Inc. to Plaintiff's Complaint, filed July 28, 1999 (hereinafter Defendant's answer with new matter to Plaintiff's amended complaint); Plaintiff's Answer to Defendant Miller & Norford, Inc.'s New Matter, filed August 6, 1999 (hereinafter Plaintiff's reply to Defendant's new matter). 5 Defendant's motion for summary judgment, paragraph 3, Exhibit A; Plaintiff's answer to Defendant's motion for summary judgment, paragraph 3. 3 Defendant general contractor and a subcontractor for which Plaintiff's decedent was working,6 and two depositions.7 The facts of the case may be summarized as follows. On January 13, 1997, Plaintiff's decedent, Robert A. Gouse, was working at a construction site in Lower Swatara Township, Dauphin County, Pennsylvania.8 The construction site was owned by Hershey Creamery Company, inc.9 Hershey Creamery Company, inc., had contracted with Defendant, Miller & Norford, inc., as general contractor for the construction of a freezer and distribution center building on the site.l° As part of the project, Defendant had subcontracted the erection of structural steel to a company called Landis, inc. ~ Plaintiff's decedent was working on the site for the subcontractor, Landis, inc., as a "borrowed employee" from a company called Steel Building[s] Erectors, inc.~2 He sustained fatal injuries when he fell from a steel joist.~3 Allegedly, the working conditions of Plaintiff's decedent were violative of a federal safety regulation that required, at his elevation, a safety net, or an object, such as a cable, 6 Defendant's motion for summary judgment, paragraph 4, Exhibit B; Plaintiffs answer to Defendant's motion for summary judgment, paragraph 4. 7 Defendant's motion for summary judgment, paragraphs 4-5, Exhibits C-D; Plaintiff's answer to Defendant's motion for summary judgment, paragraphs 4-5. 8 Plaintiff's amended complaint, paragraph 5; Defendant's answer with new matter to Plaintiff's amended complaint, paragraph 5. 9 Plaintiff's amended complaint, paragraph 6; Defendant's answer with new matter to Plaintiff's amended complaint, paragraph 6. l0 Defendant's motion for summary judgment, paragraph 3; Plaintiff's answer to Defendant's motion for summary judgment, paragraph 3. ~ Defendant's motion for summary judgment, paragraph 4; Plaintiff's answer to Defendant's motion for summary judgment, paragraph 4. ~2 Defendant's motion for summary judgment, paragraph 5; Plaintiff's answer to Defendant's motion for summary judgment, paragraph 5. ~s Defendant's motion for summary judgment, paragraph 1; Plaintiff's answer to Defendant's motion for summary judgment, paragraph 1. 4 to which the lanyard of his harness could be anchored, or some other suitable protection against injury from a fall. ~4 According to deposition testimony of David Lehman, an employee of the subcontractor, Landis, Inc., Defendant occupied the project site, had a trailer there, stationed a project superintendent on the site, and responded through its project superintendent to questions of subcontractors.~5 No evidence of record suggests otherwise. Mr. Lehman also testified that a common risk of the type of work engaged in by his company was that associated with heights, that there was "[n]othing unique or peculiar" about it, and that there was nothing "unique or unusual" about this particular job. 16 With respect to the relationship between Defendant general contractor and the subcontractor for which Plaintiff's decedent was working at the time of the the contract between Defendant and the subcontractor provided as accident, follows: 11.1 Rights and Responsibilities 11.1.1 The Subcontractor shall be bound to the Contractor by the terms of this Agreement and, to the exten[t] that provisions of the Contract Documents between the Owner and Contractor apply to the Work of the Subcontractor as defined in this Agreement, the Subcontractor shall assume toward the Contractor all the obligations and responsibilities which the Contractor, by those Documents, assumes toward the Owner .... 11.5 Safety Precautions and Procedures 11.5.1 The Subcontractor shall take all reasonable safety precautions with respect to his Work, shall comply with all ~4 Plaintiff's amended complaint, paragraphs 12-13, Exhibits B-C; N.T. 13, 23-24, 34, Deposition of Keith D. Grimes, August 23, 2001; N.T. 30-32, Deposition of David Lehman, August 23, 2001. ~5 N.T. 9-10, 12, Deposition of David Lehman, August 23, 2001; see also N.T. 20, Deposition of Keith D. Grimes, August 23,2001. 16 N.T. 7, 21, Deposition of David Lehman, August 23, 2001. 5 safety measures initiated by the Contractor and with all applicable laws, ordinances, rules, regulations and orders of any public authority for the safety of persons or property in accordance with the requirements of the Contract Documents. 17 With respect to the relationship between the subcontractor and Plaintiff's decedent, and according to deposition testimony of Keith D. Grimes, he (Grimes) and Plaintiff's decedent were employees of a company called Steel Buildings Erectors, Inc.~a Mr. Grimes stated that, on the occasion of the fall of Plaintiff's decedent, they had been assigned by their company (Steel Buildings Erectors, Inc.) to perform work for the subcontractor (Landis, Inc.) on the aforesaid project.19 It was, according to his testimony, not an uncommon practice for one company in the trade to assign workers to another which found itself shorthanded on a project.2° He testified that on the project site in question he and Plaintiff's decedent reported to and received their instructions from the subcontractor's personnel.21 No evidence in the record suggests otherwise. Mr. Grimes also testified that working at heights was a "common risk for an iron worker.''~ Defendant has asserted, in new matter in response to Plaintiff's amended complaint, that Plaintiff's claims are "barred by the immunity and exclusivity provisions of the Pennsylvania Worker's Compensation Act,''~3 and that, "[u]nder the particular facts of this case, [Defendant] had no duty to [Plaintiff's ~7 Defendant's motion for summary judgment, paragraph 4, Exhibit B; Plaintiff's answer to Defendant's motion for summary judgment, paragraph 4. ~8 N.T. 14, Deposition of Keith D. Grimes, August 23, 2001. 19 N.T. 14, Deposition of Keith D. Grimes, August 23, 2001. :0 N.T. 15-16, Deposition of Keith D. Grimes, August 23, 2001. :~ N.T. 16-18, Deposition ofKeith D. Grimes, August 23, 2001. :: N.T. 13, Deposition of Keith D. Grimes, August 23, 2001. :s Defendant's answer with new matter to Plaintiff's amended complaint, paragraph 41. 6 decedent].''24 These defenses are denied as legal conclusions in Plaintiff's reply to the new matter.25 The briefs submitted on behalf of the parties in this matter have been particularly well researched and presented.26 In a brief in support of Defendant's motion for summary judgment, Defendant contends that the record establishes that it was a statutory employer of Plaintiff's decedent, that it was therefore entitled to immunity from common law negligence claims under the Pennsylvania Workers' Compensation Act,27 and that it is consequently entitled to summary judgment herein.28 In the alternative, Defendant contends that, as to Defendant, the subcontractor for which Plaintiff's decedent was working, was an independent contractor, that under common law principles Defendant itself had no duty to Plaintiff's decedent, and that Defendant is consequently entitled to summary judgment on this basis as well.29 In her brief, Plaintiff contends that several elements of statutory employer status are lacking in Defendant's circumstances.3° She argues, in addition, that a duty on the part of Defendant to Plaintiff's decedent arose from the peculiar risk involved in the decedent's exposure to the possibility of a harmful fall under working conditions that violated a federal standard.3~ 24 Defendant's answer with new matter to Plaintiff's amended complaint, paragraph 43. 25 Plaintiff's reply to Defendant's new matter, paragraphs 41, 43. 26 See Brief in Support of Motions for Summary Judgment of Defendants Miller & Norford, Inc., and Hershey Creamery Company, Inc. (hereinafter Defendant's brief in support of motion for summary judgment); Brief of Plaintiff in Opposition to Defendants' Motion for Summary Judgment (hereinafter Plaintiff's brief in opposition to Defendant's motion for summary judgment). 27 Defendant's brief in support of motion for summary judgment, at 11-19. 28 Defendant's brief in support of motion for summary judgment, at 19. 29 Defendant's brief in support of motion for summary judgment, at 19-20. 30 Plaintiff's brief in opposition to Defendant's motion for summary judgment, at 2-12. ~ Plaintiff's brief in opposition to Defendant's motion for summary judgment, at 12-14. 7 DISCUSSION Statement of Law Statutory employer doctrine. Under the Pennsylvania Workers' Compensation Act, "an employee's common law right to damages for injuries suffered in the course of his employment as a result of his employer's negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer's liability as a tortfeasor under the law of negligence for injuries is abrogated." LeFlar v. Gun'Creek Industrial Park No. 2, 511 Pa. 574, 580, 515 A.2d 875, 879 (1986) (quoting Socha v. Motz, 385 Pa. 632, 637, 123 A.2d 837, 839-40 (1956)). The liability and immunity provided for in the act extends to a "statutory employer," defined as "[a]n employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of the employer's regular business entrusted to such employee or contractor." Act of June 2, 1915, P.L. 736, §203, as amended, 77 P.S. §52. "The intent behind the doctrine of statutory employer is 'to hold a general contractor secondarily liable for injuries to the employees of a subcontractor, where the subcontractor primarily liable has failed to secure [workers' compensation] benefits with insurance or self- insurance.'" Dougherty v. Conduit & Foundation Corp., 674 A.2d 262, 265 (Pa. Super. Ct. 1999) (quoting Caldarelli v. Mastromonaco, 115 Pa. Commw. 611, 615, 542 A.2d 181, 182 (1988)). The elements requisite to statutory employer status have been set forth by the Pennsylvania Supreme Court as follows: (1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer. (4) Part of the employer's regular business intrusted to such subcontractor. (5) An employee of such subcontractor. McDonaldv. Levinson Steel Co., 302 Pa. 287, 295, 153 A. 424, 426 (1930). The issue of whether a defendant in an action of the present type is a statutory employer is a jurisdictional one. LeFlar, 511 Pa. at 581, 515 A.2d at 879. It is a question of law, and as such is a proper subject for disposition on a motion for summary judgment. Mullins v. Sun Co., Inc., 763 A.2d 398, 399 n.3 (Pa. Super. Ct. 2000). One who utilizes a "borrowed employee" on a job is, as would be expected given the function of the Workers' Compensation Act, treated as an employer of the worker for purposes of the Act. Mullins, 763 A.2d at 399-400. In a determination of whether a worker qualifies as a borrowed employee in this regard "the right to control the performance of the work is the overriding factor." dFC Temps, Inc. v. Workers' Compensation Appeal Board, 545 Pa. 149, 156, 680 A.2d 862, 865 (1996). The law governing the "borrowed" employee is well- established. The test for determining whether a servant furnished by one person to another becomes the employee 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. The entity possessing the right to control the manner of the performance of the servant's work is the employer, irrespective of whether the control is actually exercised. Other factors which may be relevant include the right to select and discharge the employee and the skill or expertise required for the performance of the work. The payment of wages may be considered, but is not a determinative factor. Although the examination of these factors guides the determination, each case must be decided on its own facts. Id. at 153,680 A.2d at 864 (citations omitted). Peculiar risk doctrine. In general, one who engages an independent contractor for the performance of a job is not liable for physical harm caused to 9 another by an act or omission of the contractor. Edwards v. Franklin dc Marshall College, 444 Pa. Super. i, 4, 663 A.2d 187, 189 (1995). Normally, "a contractor is not liable for injuries resulting from work entrusted to a subcontractor." Leonard v. Commonwealth Department of Transportation, 565 Pa. iai, 105, 771 A.2d 1238, 1240 (2001). One exception to [the rule regarding non-liability for acts or omissions of independent contractors] is that one "may be liable for the negligence [of the independent contractor] where the work to be performed by the independent contractor involves a special danger or peculiar risk." Id. at 189. A "peculiar risk exists where: (1) the risk is foreseeable to the [party which engages] the independent contractor at the time the contract is executed, i.e., a reasonable person, in the position of [that party], would foresee the risk and recognize the need to take special measures; and (2) the risk is different from the usual and ordinary risk associated with the general type of work done, i.e., the specific project or task chosen by the [party] involves circumstances that are substantially out-of-the-ordinary." Edwards, 444 Pa. Super. at 6, 663 A.2d at 190. In Ortiz v. Ra-E1 Development Corp., 365 Pa. Super. 48, 528 A.2d 1355 (1987), the fall of a bricklayer employed by a subcontractor on a construction project from a scaffold which collapsed was held not to have been encompassed by the peculiar risk doctrine. "[P]eculiar risk situations," the court observed, "should be viewed narrowly, as any other exception to a general rule is usually viewed." Id. at 55, 528 A.2d at 1359, quoting Marshall v. Southeastern Pa. Transp. Auth., 587 F. Supp. 258, 264 (E.D. Pa. 1984). Application of Law to Facts In the present case, the court is unable to agree with Plaintiff that the requisites for statutory-employer status on the part of Defendant with respect to Plaintiff's decedent were lacking. Specifically, the record seems clear that (i) ia Defendant was an employer under contract with an owner, (2) the project site was under the control of Defendant, (3) the subcontractor for which Plaintiff's decedent was working was under contract with Defendant, (4) the subcontractor was entrusted with part of Defendant's regular business, and (5) Plaintiff's decedent was an employee of the subcontractor by virtue of the "borrowed employee" doctrine. Under these circumstances, and based upon the foregoing Statement of Facts and Statement of Law, Defendant's motion for summary judgment will be granted.32 ORDER OF COURT AND NOW, this 9th day of April, 2002, upon consideration of the motions for summary judgment filed by Defendants Hershey Creamery Company, inc., and Miller & Norford, inc., and for the reasons stated in the accompanying opinion, Defendants' motions for summary judgment are granted. BY THE COURT, Ron A. Turo, Esq. Carol L. Cingranelli, Esq. 28 S. Pitt Street Carlisle, PA 17013 Attorneys for Plaintiff J. Michael Flanagan, Esq. 150 East Chester Street Lancaster, PA 17602 Attorney for Defendants Miller & Norford and Hershey Creamery Company s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 32 Although a strong argument can also be made that Plaintiff's underlying claims for negligence against Defendant can not be sustained by reference to the peculiar risk doctrine, in view of the court's disposition of Defendant's motion pursuant to the statutory employer doctrine it is unnecessary to resolve the peculiar risk question in this opinion. ii Charles E. Haddick, Jr., Esq. 20 South 36th Street Camp Hill, PA 17011 Attorney for Defendant Landis George H. Eager, Esq. 1347 Fmitville Pike Lancaster, PA 17601 Attorney for Defendant Steel Buildings Erectors 12 13 THE ESTATE OF ROBERT A. GOUSE, by MARGARET E. REISINGER, Administratrix, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW MILLER & NORFORD, INC.; LANDIS, INC.; STEEL BUILDINGS ERECTORS, INC.; and HERSHEY CREAMERY COMPANY, INC. Defendants NO. 99-0117 CIVIL TERM IN RE: MOTIONS FOR SUMMARY JUDGMENT OF DEFENDANTS HERSHEY CREAMERY COMPANY, INC., and MILLER & NORFORD, INC. BEFORE HOFFER, P.J., and OLER, J. ORDER OF COURT AND NOW, this 9th day of April, 2002, upon consideration of the motions for summary judgment filed by Defendants Hershey Creamery Company, Inc., and Miller & Norford, Inc., and for the reasons stated in the accompanying opinion, Defendants' motions for summary judgment are granted. BY THE COURT, Ron A. Turo, Esq. Carol L. Cingranelli, Esq. 28 S. Pitt Street Carlisle, PA 17013 Attorneys for Plaintiff J. Wesley Oler, Jr., J. 15 J. Michael Flanagan, Esq. 150 East Chester Street Lancaster, PA 17602 Attorney for Defendants Miller & Norford and Hershey Creamery Company Charles E. Haddick, Jr., Esq. 20 South 36th Street Camp Hill, PA 17011 Attorney for Defendant Landis George H. Eager, Esq. 1347 Fmitville Pike Lancaster, PA 17601 Attorney for Defendant Steel Buildings Erectors