Motter v. Meadows Ltd. Partnership

680 A.2d 887, 451 Pa. Super. 520, 1996 Pa. Super. LEXIS 2140
CourtSuperior Court of Pennsylvania
DecidedJuly 17, 1996
StatusPublished
Cited by14 cases

This text of 680 A.2d 887 (Motter v. Meadows Ltd. Partnership) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Motter v. Meadows Ltd. Partnership, 680 A.2d 887, 451 Pa. Super. 520, 1996 Pa. Super. LEXIS 2140 (Pa. Ct. App. 1996).

Opinion

MONTEMURO, Justice. *

This is an appeal from the Orders of the Court of Common Pleas of Cumberland County granting summary judgments in favor of Appellees. For the following reasons, we affirm.

On August 23,1989, Appellant Vincent Motter (“Appellant”) was injured when the ten foot deep trench he was working in collapsed on top of him. The site of the accident was part of a construction project known as “The Meadows” located in *524 Middlesex Township, Cumberland County, Pennsylvania. Originally this land was owned by The Meadows Limited Partnership (“Meadows Limited”) and Charles J. Taylor (“Taylor”). The Meadows Sewer Company (“Meadows Sewer”) was incorporated by Meadows Limited and Taylor to construct, own, and operate the sewer facilities for the subdivision. Meadows Limited and Taylor laid out a series of subdivision plans for The Meadows. Final Subdivision Plan # 3 was the last plan designed (dated March 8, 1989) and was the plan adhered to by the parties. Robert G. Hartman, t/d/b/a Whittock-Hartman Engineers (“Hartman”), was hired by Meadows Limited, Taylor, and Meadows Sewer to design and engineer plans for construction of sewer facilities for The Meadows subdivision.

On June 30, 1989, Penn Harris Construction Company (“Penn Harris”) purchased the land and the rights to The Meadows project known as Final Subdivision Plan # 3. Penn Harris hired KDS Excavating Inc. (“KDS”), an independent contractor, to install sanitary sewer facilities for the subdivision.

On August 23, 1989, KDS was excavating a portion of the Final Subdivision Plan # 3 marked manhole 3-3, Lot # 34, on the survey performed by Hartman. The survey revealed that the trench in this area was to be more than ten feet deep. Hartman’s engineering drawings also showed that the soil at this location was unstable and, under applicable OSHA standards, required KDS to use shoring and bracing techniques to ensure worker safety. Representatives of KDS testified that they were unaware of these OSHA requirements and, therefore, did not follow them. Instead, workers for KDS “sloped” or “benched” the sides of the trench to prevent cave-ins. Appellant, an employee of KDS, was working in the ten foot deep trench, when the sides of it collapsed on top of him causing his injuries.

On August 12, 1991, Appellant brought suit for his injuries against: the original landowner and designer of the subdivision plans, Meadows Limited and Taylor; the company created to own and operate the sewer facilities for the Meadows *525 subdivision, Meadows Sewer; the landowner at the time of the accident, Penn Harris; and the engineer who designed the construction of the sewage facilities for the subdivision, Hartman. In addition, appellant’s employer KDS was joined as an additional defendant on December 6,1991.

On July 18,1994, the trial court granted summary judgment as to Meadows Limited, Taylor, Meadows Sewer, and Hartman. On June 9,1995, the court granted Penn Harris’ motion for summary judgment. Appellant now appeals these decisions as to all defendants except Meadows Sewer.

On a motion for summary judgment, the record must be viewed in the light most favorable to the nonmoving party, and all doubts as to existence of genuine issue of material fact must be resolved against the moving party. Summary judgment may be entered only in cases where the right is clear and free from doubt. Hayward v. Medical Ctr. of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992). In such clear cases, summary judgment is proper if the moving party is entitled to judgment as a matter of law. Santillo v. Reedel, 430 Pa.Super. 290, 294, 634 A.2d 264, 266 (1993). After viewing the facts of the case in a light most favorable to Appellant, the trial court determined that no genuine issues of material fact existed and, therefore, granted appellants’ motions for summary judgment. We agree.

In reviewing an order granting summary judgment, an appellate court must determine whether there is a genuine issue of material fact. The grant of summary judgment can be sustained only if pleadings, depositions, answers to interrogatories and admissions show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law. Logan v. Mirror Printing Co. of Altoona, Pa., 410 Pa.Super. 446, 449, 600 A.2d 225, 227 (1991). The Superior Court must examine the record in the light most favorable to the nonmoving party, and will only disturb the trial court’s decision if there is an abuse of discretion or an error of law. Second Fed. Sav. and Loan Ass’n. v. Brennan, 409 Pa.Super. 581, 585, 598 A.2d 997, 998 (1991).

*526 The trial court properly granted summary judgment as to Meadows Limited, Taylor and Hartman. After a review of the records and the parties briefs, we find that the trial court adequately addressed and disposed of Appellant’s arguments. We acknowledge the fact that the trial court did not address the contention made by Appellant that Taylor and Meadows Limited should be vicariously liable for the negligence of Hartman under sections 416 and 427 of Restatement (Second) of Torts. However, based on the trial court’s proper finding that Hartman was not negligent, there is no need to discuss these claims.

Appellant also disputes the trial court’s grant of summary judgment in favor of Penn Harris. Penn Harris owned the property on which this accident happened and was the party responsible for hiring KDS to excavate the trench in which Appellant was injured. As a general rule, “the employer of an independent contractor is not liable for the physical harm caused [to] another by an act or omission of the contractor or his servant.” Mentzer v. Ognibene, 408 Pa.Super. 578, 589, 597 A.2d 604, 610 (1991), alloc. denied, 530 Pa. 660, 609 A.2d 168 (1992) (citing Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 151, 189 A.2d 271, 277 (1963) (citations omitted)). “An independent contractor is in possession of the necessary area occupied by the work contemplated under the contract, and his responsibility replaces that of the owner who is, during the performance of the work by the contractor, out of possession and without control over the work or the premises.” Mentzer, 408 Pa.Super. at 589, 597 A.2d at 610 (citing Hader, 410 Pa. at 151, 189 A.2d at 277).

An exception to this general rule is recognized, where the independent contractor is hired to do work which the employer should recognize as likely to create a special danger or peculiar risk of physical harm to others unless special precautions are taken. Restatement (Second) of Torts, §§ 416 and 427 (1965) (adopted as law of Pennsylvania in Philadelphia Elec. Co. v.

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Bluebook (online)
680 A.2d 887, 451 Pa. Super. 520, 1996 Pa. Super. LEXIS 2140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/motter-v-meadows-ltd-partnership-pasuperct-1996.