Beil v. Telesis Construction, Inc.

11 A.3d 456, 608 Pa. 273, 2011 Pa. LEXIS 106
CourtSupreme Court of Pennsylvania
DecidedJanuary 19, 2011
Docket13 EAP 2009
StatusPublished
Cited by30 cases

This text of 11 A.3d 456 (Beil v. Telesis Construction, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beil v. Telesis Construction, Inc., 11 A.3d 456, 608 Pa. 273, 2011 Pa. LEXIS 106 (Pa. 2011).

Opinions

[277]*277 OPINION

Justice TODD.

In this appeal by allowance, we consider the “retained control” exception to the general rule that a property owner who employs an independent contractor is not liable for injuries to the employees of the independent contractor or its subcontractor. For the reasons set forth below, we affirm the order of the Superior Court, which remanded for entry of judgment notwithstanding the verdict in favor of Lafayette College (“College”).

By way of background, Lafayette College (“the College”), located in Easton, Pennsylvania, is an educational institution offering degree programs in the liberal arts and engineering. The College hired Telesis Construction, Inc. (“Telesis”) as a general contractor to renovate the engineering building, also known as the Acopian Building, on the College’s campus. The College and Telesis entered into a Construction Management Agreement (“CMA”). Telesis’ on-site project manager was Edward Baer. The College designated one of its employees, Andrew Roth, as its project manager. The College and Telesis understood that Telesis would subcontract the renovation work to another entity. Telesis subcontracted with Kunsman Roofing and Siding (“Kunsman”) to perform the roofing work on the building. Appellant David Beil was employed by Kunsman as a roofer. The College separately contracted with Masonry Preservation Services, Inc. (“MPS”) to restore stonework on the outer walls of the building. Robert Bajda was MPS’ foreman.

On a rainy June 13, 2003 morning, Beil arrived at the site to install termination bars. These bars, also known as flashing, are thin aluminum strips, three inches wide and eight feet long, that are wrapped around the top of a protrusion through the roof, screwed into place, cuffed, and caulked to prevent leaking through the roof. The installation of the termination bars is the last step a roofer takes to seal a roof. The masonry work to be completed by MPS required the erection of a scaffold. The scaffolding erected by MPS included a [278]*278vertically-mounted ladder that was not equipped with fall protection. Beil used MPS’ scaffolding to access the roof. While ascending the vertically-mounted ladder in the rain, with approximately 10 to 15 pounds of termination bar over his shoulder, Beil fell approximately 30 feet, and, as a result, sustained a concussion, injuries to his head and neck, a fractured right shoulder, and a fractured left heel.

On June 6, 2005, Beil filed a personal injury action against the College, as owner of the property, Telesis, as the general contractor, and MPS, as owner of the scaffolding, in the Court of Common Pleas of Philadelphia County. Beil averred that all three defendants were negligent. Beil also asserted a strict liability action against MPS. Appellant Cheryl Beil, Beil’s wife, asserted a claim against all three defendants for loss of consortium.

Prior to trial, the College filed a motion for summary judgment on the basis that it was an owner of the premises, that it had hired an independent contractor, Telesis, to perform construction on those premises, and that, under Pennsylvania law, the College was not liable for injuries to employees of the independent contractor or its subcontractors. The College further asserted that the limited exception for situations where an owner had retained the right of control over the work was not applicable because the College did not retain such control. The motion was denied without opinion.

On October 27, 2006, following trial, a jury found in favor of Appellants against all three defendants1 and awarded damages in the amount of $6,800,000. The jury apportioned liability 50% to Telesis, 35% to the College, 10% to MPS, and 5% to Beil.

The College filed post-trial motions seeking judgment notwithstanding the verdict (“judgment n.o.v.”), a new trial, a new trial on damages, or a remittitur. Specifically, the College argued that it could not be held liable under either the [279]*279exception for “retained control” or the exception for “peculiar risk.” In the alternative, the College sought judgment in its favor on its cross-claims for indemnity against MPS and Telesis. On March 27, 2007, the trial court molded the verdict to reflect delay damages and denied the College’s motions. One month later, on April 27, 2007, the court entered judgment against the College in the amount of $2,488,348.20.2 Thereafter, the College appealed to the Superior Court.

On August 12, 2008, by unpublished opinion and order, a unanimous panel of the Superior Court reversed and remanded for entry of judgment n.o.v. in favor of the College. Viewing the evidence in the light most favorable to Appellants as verdict winners, the Superior Court concluded that the College was not liable as a matter of law under the “owner control” or “peculiar risk” exceptions to the general rule that one who hires an independent contractor is generally exempt from liability for injuries sustained by employees of the contractor or its subcontractor.

The Superior Court first noted the general rule in Pennsylvania that a party who hires an independent contractor is generally exempt from liability for injuries sustained by the contractor’s employees. Thus, a property owner has no duty to warn the contractor or its employees of conditions that are at least as obvious to the contractor and its employees as they are to the landowner. Responsibility for protection, and liability for negligence, therefore, are placed on the contractor and its employees. The court acknowledged, however, an exception to this general rule where a property owner who hires an independent contractor retains control of the means and methods of the contractor’s work. This “retained control” exception, set forth in the Restatement (Second) of Torts § 414 (1965), has been adopted in Pennsylvania. See Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa. 46, 911 A.2d 1264 (Pa.2006). As stated in the Restatement, “It is not enough that [the property owner] has merely a general right [280]*280to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.... There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Restatement (Second) of Torts § 414, cmt. c. Further, the court recognized that Pennsylvania courts have declined to apply the retained control exception to an owner who is concerned about safety, citing Farabaugh.

The Superior Court recognized the somewhat unique nature of the relationship between the College and Telesis and of that between the College and MPS, finding it necessary to analyze both relationships to determine the College’s liability. First, regarding the relationship between the College and MPS, the court observed that the College hired MPS directly to restore the stonework on the engineering building. Under its purchase order with MPS, the College retained a right to inspect and approve “all material and equipment purchased” by MPS. Roth, the College’s project manager, maintained a regular presence on the work site and knew the scaffolding did not have fall protection. Furthermore, MPS consulted the College as to the placement of the scaffolding.

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Bluebook (online)
11 A.3d 456, 608 Pa. 273, 2011 Pa. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beil-v-telesis-construction-inc-pa-2011.