J-A03020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KAREN RICE, INDIVIDUALLY AND AS IN THE SUPERIOR COURT OF ADMINISTRATOR TO THE ESTATE OF PENNSYLVANIA TIMOTHY RICE
Appellants
v.
JUDY BOLLINGER, RICHARD GEORGE, S&S HOME BUILDERS, INC., HAROLD RICE AND/OR HAROLD RICE D/B/A HR RICE CUSTOM PAINTING AND/OR HAL RICE
Appellees No. 397 MDA 2016
Appeal from the Order Entered February 9, 2016 In the Court of Common Pleas of Luzerne County Civil Division at No: 2013-08539
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 26, 2017
Appellant Karen Rice, Individually and as Administrator of the Estate of
Timothy Rice, appeals from the February 9, 2016, order entered in the Court
of Common Pleas of Luzerne County (“trial court”), granting summary
judgment in favor of Judy Bollinger, Richard George, S&S Home Builders,
Inc., Harold Rice and/or Harold Rice d/b/a HR Rice Custom Painting and/or
Hal Rice (individually “Bollinger,” “George,” “S&S,” and “HR,” or “Harold,”
and collectively “Appellees”). Upon review, we affirm.
Briefly, on July 17, 2011, Timothy Rice (“Tim”) was at a property
owned by Bollinger to complete a painting project when he allegedly suffered J-A03020-17
a fatal fall. As a result, his wife, Appellant, filed a complaint against
Appellees, raising causes of action for negligence, wrongful death, survival
action, and negligent infliction of emotional distress. Appellees eventually
moved for summary judgment. In her motion for summary judgment,
Bollinger argued that she could not be liable for Tim’s death because Tim
was on the property as a sub-contracted painter. HR and Harold, in their
summary judgment motion, argued that, as a matter of law, Appellant could
not prevail against them because they hired Tim as a sub-contractor to
perform a paint project on Bollinger’s property. Lastly, George and S&S in
their summary judgment motion argued, inter alia, that they were not liable
for Tim’s death because they owed no legal duty of care to Tim, who was on
Bollinger’s property in his capacity as an independent painting contractor.
On February 9, 2016, the trial court issued an order and opinion, granting
Appellees’ respective motions for summary judgment.
Appellant timely appealed. Following Appellant’s filing of a Pa.R.A.P.
1925(b) statement of errors complained of on appeal,1 the trial court issued
a Pa.R.A.P. 1925(a) opinion, captioned “Amended Opinion,” wherein it
____________________________________________
1 We observe with disapproval that Appellant’s Rule 1925(b) statement spanned over 12 pages and contained 72 assertions of error. We repeatedly have emphasized that a 1925(b) statement must be “sufficiently concise and coherent such that the trial court judge may be able to identify the issues to be raised on appeal, and the circumstances must not suggest the existence of bad faith.” Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa. Super. 2008), appeal denied, 958 A.2d 1048 (Pa. 2008).
-2- J-A03020-17
slightly amended its February 9, 2016, opinion in support of Appellees’
summary judgment motions.
On appeal,2 Appellant raises three issues for our review, reproduced
here verbatim:
[I.] Whether the trial court erred in determining as a matter of law [Tim’s] status as an “independent contractor” where sufficient factual issues remain such that [Tim’s] status is a factual question for the jury?
[II.] Whether the trial court erred in granting summary judgment as to each [Appellee]?
[III.] Whether the trial court erred in determining there was no duty owed to [Tim] by any [Appellee] as a matter of law where sufficient factual issues remain? ____________________________________________
2 It is well-settled that [o]ur scope of review of a trial court’s order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or abused its discretion. Summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment. Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)). Moreover, “[w]here the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers to survive summary judgment.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa. Super. 2014) (citation omitted). “Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law.” Id.
-3- J-A03020-17
Appellant’s Brief at 4 (unnecessary capitalization omitted).
After careful review of the record and the relevant case law, we
conclude that the trial court accurately and thoroughly addressed the merits
of Appellant’s issues on appeal. See Trial Court Opinion, 4/27/16, at 9-24.
Accordingly, we affirm the trial court’s February 9, 2016 order granting
Appellees’ respective motions for summary judgment. We further direct that
a copy of the trial court’s April 27, 2016 opinion be attached to any future
filings in this case.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/26/2017
-4- Circulated 03/31/2017 01:52 PM
Karen Rice, Individually and as In the Court of Common Pleas Administrator to the Estate of Luzerne County of Timothy Rice
Plaintiff, CIVIL ACTION - LAW v.
Judy Bollinger, Richard George, S&S Home Builders, Inc., Harold Rice and/or Harold Rice d/b/a HR Rice Custom Painting and/or Hal Rice ~ Defendants ~j AMENDED OPINION
Background
The instant matter arises out of the death of Timothy Rice ("Tim
Rice"), husband of Plaintiff Karen Rice, on July 17, 201 l. related to a fall
from the staircase at a property owned by Defendant Judy Bollinger
("Bollinger") and located at Lake Wallenpaupack, Pennsylvania (the
"Property"). Prior to Tim Rice's death, Bollinger hired S&S Home Builders,
Inc. ("S&S Home Builders") to construct a home on the Property. (Richard
George Deposition, p. l 06.) Bollinger was not involved in the construction
of the house and did not complete any work on the house while
construction was in progress. (~ at 113-114.) Richard George ("George")
is the sole owner and President of S&S Home Builders and has responsibility
for supervising home builds which are completed by subcontractors for
the Company. (~ at 12, 16, 19.) This supervision involves observing the
construction site after the completion of each subcontractor's work to
,~, determine whether the site is ready for the next subcontractor. (Id. at 96-
97.) According to George, during these visits, he observes the safety
measures put in place by each subcontractor. {.!s;t at 98.} According to
George, he takes his safety responsibility on all jobs seriously and believes
that he should do everything to keep all subcontractors on a job safe. (Id.
at 83-84.} If a subcontractor is not completing a job in a safe manner, S&S
Home Builders will dismiss him/her from his/her duties. (.!s;t at l 03.}
S&S Home Builders hired a subcontractor, Defendant Harold Rice
d/b/a HR Rice Custom Painting ("Hal Rice"), to complete the painting at
the home construction. S&S Home Builders did not provide Hal Rice with
any supplies, and did not direct any safety protocols. (.!s;t at 19; Hal Rice
Deposition, p. 101-104.) S&S Home Builders only provided Hal Rice with the
location, needs, and deadline for the job. (Hal Rice Deposition, p. 101.}
Neither George, nor S&S Home Builders, provided any instruction to Hal
Rice on how the home should be painted. (.!s;t at 104.}
Hal Rice hired his brother, Tim Rice, to complete finishing and touch-
up paint work to the home. (Js;h at l 04.) Hal Rice often hired
subcontractors to assist with painting jobs. (Js;h at 39-40.) He ordered the
paint for the subcontractors and set deadlines for their work, but did not
provide them with supplies or scaffolding. (Id. at 20, 39-40.} Prior to sending
a subcontractor to a job, Hal Rice would often complete a walk-through
inspection of the premises to determine how much paint would be
------··--·-····,····---··-·- - needed and whether the premises were ready for paint. {1st at 49.) It was
important for Hal Rice that subcontr~ctors follow deadlines so that the
next step of the construction could proceed. {1st at 20.) Hal Rice had the
ability to dismiss any of his subcontractors. (Id. at 37-38.) He required each
subcontractor, including Tim Rice, to sign an independent contractor
agreement, outlining the nature of the relationship between the parties.
(1st 44-45.) The agreement required that the independent contractor was
solely responsible for safety and supplying his own insurance. (1st} Tim Rice
was paid by the hour and received a 1099 for each year in which work
was subcontracted to him. (Id. at 52, 88-89 .) Other subcontractors hired
by Hal Rice were paid in different forms depending on the way Hal Rice
was paid for the particular job. (kl at 54.}
The building plans for the home contained a provision for the
installation of a wooden hand rail along the staircase. Prior to the
installation of the hand rail, Bollinger instructed George that she did not
desire to use the wooden rail he had ordered, rather, she preferred a
modern-looking rail. {Richard George Deposition, p. l 19-122, 126-137, 17 4.)
George informed Bollinger that he could not install such a rail and that he
· would reduce the original contract price by the price for the wooden rail
and installation. {Id. at 159, 17 4.) Bollinger hired another construction
company to install the modern railing. (kl at 92, 158-159, 181.)
3 On July 17, 2011, the day of his death, Tim Rice and Karen Rice were
at the Property completing a painting project. In the afternoon, Karen
Rice went outside for a period of time. (Karen Rice Deposition, p. 110-121.)
When she returned, her husband was laying at the bottom of the stairs in
the home. (kt.) Karen Rice did not witness her husband fall from the stairs
and does not know the cause of the fall. {kt.) The hand rail for the
staircase had not yet been installed. (kt. at 200-20 l .} No temporary railing
or scaffolding was constructed at the time of Tim Rice's fall. (Id.) In her
deposition, Karen Rice stated that, on the date of the incident, she could
see that there was no railing on the stairs. (ld. at 93.) Karen Rice also
stated that when she visited the property with her husband a few days
before the incident, it was noticeable that there was no railing on the
stairwell. (kt. at 66-67.)
As a result of the death of her husband, Tim Rice, Karen Rice, both
individually and as administrator of his Estate {collectively, "Plaintiffs"), filed
an action based in negligence against various parties involved in the
construction project at the Property. Through the course of the litigation,
certain Defendants were removed and the only Defendants remaining
are Bollinger, Hal Rice and/or Harold Rice d/b/a HR Rice Custom Painting,
George, and S&S Home Builders (collectively, the 1'Defendants"). Each of
the Defendants have filed motions for summary judgment which are
currently before this Court.
4 Standard of Review
The Pennsylvania Rules of Civil Procedure that govern summary
judgment instruct, in relevant part, that the court shall enter judgment
whenever there is no genuine issue of any material fact as to a necessary
element of the cause of action or defense that could be established by
additional discovery. Pa.R.C.P. 1035.2(1) (2005). Pursuant to the Rules of
Civil Procedure, a motion for summary judgment is based on an
evidentiary record that entitles the moving party to a judgment as a
matter of law. Note to Pa.R.C.P. 1035.2 (2005}. "In considering the merits of
a motion for summary judgment, a court views the record 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." Fine v. Checcio, 582 Pa. 253, 265, 870 A.2d 850, 858 (citing Jones v.
SEPTA 565 Pa. 21 L 772 A.2d 435, 438 (2001)). Still, the non-moving party
may not rest upon the allegations or denials in the pleadings, rather,
he/she must identify in the record evidence of a dispute of material fact.
Pa.R.C.P., Rule 1035.3 {2003). Finally, the court may grant summary
judgment only where the right to such a judgment is clear and free from
doubt. Marks v. Tasman, 527 Pa. 132, 134-135, 589 A.2d 205, 206 (1991 }.
Law and Discussion
The matters before this Court are Defendant Judith Bollinger's
Second Motion for Summary Judgment, Defendants Harold Rice and/or
5 .~-....
Harold Rice d/b/a HR Rice Custom Painting's Motion for Summary
Judgment, and Defendants Richard George and S&S Home Builders, lnc.'s
Motion for Summary Judgment. For the reasons that follow, the various
Motions for Summary Judgment are GRANTED.
Independent Contractor Status of Tim Rice
Initially, to ascertain the law governing any duty owed to Tim Rice
by any of the Defendants, it is necessary to consider whether, as a matter
of law, Tim Rice was an employee or an independent contractor. "In any
case sounding in negligence, a plaintiff must demonstrate: ( 1} a duty of
care; (2) the breach of the duty; (3) a causal connection between the
conduct and the resulting injury; and (4) actual loss or damage resulting
to the plaintiff. Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa.
46, 61, 911 A.2d 1264, 1272-1273 (Pa. 2006). Tim Rice's status as either an
employee or an independent contractor implicates his relationship with
each Defendant, and, thus, any duty which each may respectively owe.
Importantly, if the facts related to one's status as either an independent
contractor or an employee are not in dispute, then the determination is to
be made by the court as a matter of law. Cox v. Caeti, 444 Pa. 143, 147,
279 A.2d 756, 758 (Pa. 1971) {internal citations omitted}.
According to the Pennsylvania Supreme Court, "[i] n ascertaining
whether a person is an employee or an independent contractor, the
basic inquiry is whether such person is subject to the alleged employer's
6 -· right of control or right to control with respect to his physical conduct in
performance of the services for which he was engaged." & The following factors will be considered by a court to determine whether an individual is
an independent contractor: " ... ( l) control of manner the work is done; (2)
responsibility for result only; (3) terms of agreement between the parties;
(4) nature of the work/occupation; (5) skill required for performance; (6)
whether one is engaged in a distinct occupation or business; {7) which
party supplies the tools/equipment; (8) whether payment is by time or by
the job; (9) whether work is part of the regular business of employer; and,
{l 0) the right to terminate employment." American Road Lines v. Workers'
Compensation Appeal Board, 39 A.3d 603, 61 l (Pa. Cmwlth. Ct. 2012).
While none of the factors mentioned are dispositive, the key factors are
control over the work and the manner in which such work is performed. Id.
In the instant matter, it is clear Hal Rice did not exercise the type of
control over Tim Rice necessary to classify him as an employee, rather
than as an independent contractor. The undisputed facts of record
demonstrate that Tim Rice was not subjected to any control by Hal Rice
related to the painting services for which he was hired. See Cox, 444 Pa.
at 147, 279 A.2d at 7 58. Hal Rice merely provided paint and set deadlines
for Tim Rice. (See Hal Rice Deposition, p. 20, 39-40.) He did not provide any
tools to Tim Rice for the completion of the job. (Id. at 101-104.)
7 -. _........__
Applying the factors which Pennsylvania courts have delineated for
determining whether an individual is an employee or an independent
contractor, Tim Rice's status as an independent contractor remains clear.
See American Road Lines, 303 A.3d at 611. Tim Rice exercised control over
his own work. See id. The parties were only responsible for the end result
of the work completed. See id. As demonstrated through the
independent contractor agreement and the performance of the parties.
Tim Rice controlled the manner of the work and was responsible for his
own safety. See id. Also, the nature of the work, painting, often involves
similar subcontractor relationships between parties. See id. Painting is a
skilled trade for which Tim Rice relied on his own expertise. See id. Tim Rice
used his own equipment to complete the work at the Property. See id. Hal
Rice provided 1099s to Tim Rice for taxation purposes in relation to his pay
for work completed. See id. Hal Rice would dismiss any of his
subcontractors from the job if the work was inadequate. See id. Although
Tim Rice was paid an hourly rate, and both Tim and Hal Rice were in the
business of painting, no one factor is dispositive. See id. The record as a
whole reflects that Hal Rice did not control the manner in which Tim Rice
completed his work. See id.
Finally, Plaintiff's argument that Tim Rice's status as either an
employee or an independent contractor raises a genuine issue of
material fact making entry of summary judgment improper is misplaced.
8 First, assuming, arguendo, Tim Rice was an employee of Hal Rice, then the
instant matter would be preempted by the Pennsylvania Workers'
Compensation Act and the suit could not stand in the Court of Common
Pleas. Second, Plaintiff fails to recognize that Tim Rice's status as either an
employee or an independent contractor is not a .. fact" which remains in
dispute, rather, it is a determination for this Court to make, as a matter of
law, based on the undisputed facts of record relevant to his status. Cox,
444 Pa. at 147, 279 A.2d at 758. Plaintiff simply has failed to point to any
remaining fact which is unresolved and would affect a determination by
this Court of Tim Rice's status as either an employee or an independent
contractor. See Pa.R.C.P., Rule 1035.3.
Non-Liabilityand Retained Control
As a matter of law, none of the Defendants, a landowner and
independent contractors, owed any duty of care to Tim Rice, a
subcontractor, thus, summary judgment is appropriate in this negligence
action.
Liability of Landowner (Bollinger}
First, summary judgment in favor of Bollinger is proper because a
landowner who entrusts work to an independent contractor owes no duty
of care to others for the act or omission of the contractor or its servants.
According to the Pennsylvania Supreme Court, "[f]or over 100 years, the
accepted and general rule regarding liability in our Commonwealth has
9 , .....
been that a landowner who engages an independent contractor is not
responsible for the acts or omissions of such independent contractor or his
employees." Beil v. Telesis Construction, Inc., 608 Pa. 273, 289, 11 A.3d 456,
466 (Po. 2011} (internal citations omitted}. Further, "[t]his foundational law
is based upon the long-standing notion that one is not vicariously liable for
the negligence of an independent contractor, because engaging an
independent contractor implies that the contractor is independent in the
manner of doing the work contracted for." kl Pursuant to Section 409 of
the Restatement (Second} of Torts, "[e]xcept as stated in Sections 410-429,
the employer of an independent contractor is not liable for physical harm
caused to another by an act or omission of the contractor or his servants."
Restatement (Second) of Torts§ 409.1
Section 414 of the Restatement (Second) of Torts, as adopted in
Pennsylvania, provides that "[o]ne who entrusts work to an independent
contractor, but who retains the control of any part of the work, is subject
to liability for physical harm to others for whose safety the employer owes
a duty to exercise reasonable care, which is caused by his failure to
exercise his control with reasonable care." Restatement (Second} of Torts
I One exception to the general rule of non-liability for those who hire an independent contractor is the peculiar risk exception. However, this Opinion does not address the peculiar risk exception because it clearly does not apply to the facts of this case. Notably, the Pennsylvania Superior Court has stated: "There is nothing about the existence of a stairwell opening at a two-story building construction site that presents a peculiar risk to those working on the building. The risk of falling through such an opening is on incident of such work and the customary procedure for protecting such an opening to guard against a falling is well within the normal expertise of a qualified contractor. Mentzerv. Oanibene, 408 Pa.Super. 578, 592-593, 597 A.2d 604, 61 l (Pa. Super. 1991).
10 .-....
§ 414; Beil, 608 Pa. at 289, 11 A.3d at 466. Pursuant to Comment c to
Restatement Section 414:
In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to 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. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. 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, Comment c.
A party may demonstrate the control necessary to invoke the
exception in two ways. Beil, 608 Pa. at 291, 11 A.3d at 467. First, the fact
that a landowner has retained control over the work to be completed
may be demonstrated through contractual provisions giving the
landowner control over the manner, method, and operative details of the
work.Id, Second, a party may show that the landowner exercised actual
control over the work.Id, According to the Pennsylvania Supreme Court,
" ... our Commonwealth's case law has construed this exception narrowly."
~(See~ Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa. 46,
911 A.2d 1264 (Pa. 2006); Haderv. Cement Mfg. Co., 410 Pa. 139, 189 A.2d
271 (Pa. 1963); See also Warnick v. The Home Depot U.S.A., Inc., 516 F.
11 Supp.2d 459, 468 (E.D. Pa. 2007)). In general, the question of retained
control is one of fact for the jury. Id. However, the Pennsylvania Supreme
Court has clearly stated that, when " ... the evidence fails to establish the
requisite retained control, the determination of liability may be made as a
matter of law." kh In Beil v. Telesis Construction, Inc., the Pennsylvania Supreme Court
affirmed the decision of the Superior Court directing that judgment
notwithstanding the verdict be entered in favor of a landowner that did
not retain sufficient control over the manner of the work of independent
contractors to invoke the retained control exception to the general rule of
non-liability. Beil, 608 Pa. 273, 11 A.3d 456. Lafayette College, the
landowner, hired Telesis Construction, Inc. ("Telesis") as the general
contractor for the renovation of its engineering building. Id. at 277, 458.
Telesis subcontracted the roofing work for the project to Kunsman Roofing
and Siding ("Kunsman") and Plaintiff David Beil (''Beil") was an employee
of Kunsman. kh at 277, 459. Lafayette College also separately contracted
with Masonry Preservation Services, Inc. ("MPS"} to complete stone work
on the outer walls of the building.
While completing work on the roof flashing, Beil, who was using the
MPS scaffolding, fell 30 feet and sustained head and neck injuries, a
concussion, a fractured right shoulder, and a fractured heel. kh at 278,
459. Based on the accident, Beil filed a personal injury lawsuit against
12 -- Lafayette College, Telesis, and MPS. Id. A jury verdict was later entered in
favor of all Defendants; however, the Superior Court reversed the trial
court and instructed that it enter judgment notwithstanding the verdict in
favor of Lafayette College because it was not liable as a matter of law
under any exception to the general rule of non-liability for a landowner
who hires an independent contractor. Id. at 279, 460. Upon Plaintiffs'
appeal, the Supreme Court affirmed the entry of judgment in favor of
Lafayette College as a matter of law. See generally Beil, 608 Pa. 273, 11
A.3d 456.
Plaintiffs' arguments to the Supreme Court that Lafayette College
retained sufficient control of the worksite to invoke the exception to the
general rule of non-liability focused on the College's control over access
and safety. Id. at 291, 467. Plaintiffs first argued that Lafayette College
retained control over safety matters for Telesis, Kunsman, and MPS. k;L As
proof of this control, Plaintiffs cited contractual provisions pursuant to
which Telesis agreed to comply with Lafayette College's safety directions
and rules. k;L To demonstrate control, Plaintiffs also pointed to facts
involving the College's input on the placement of the scaffolding for
safety purposes. k;L at 292, 467. Despite these facts, the Beil Court
specifically held that the notion that safety-related conduct at a worksite
could establish the requisite control to invoke the exception " ... is contrary
to consistent pronouncements by our Commonwealth's courts rejecting
13 -..
such arguments as against sound public policy." Id. at 292, 468.
Referencing Farabaugh v. Pennsylvania Turnpike Commission, the Court
explained that it recently rejected as a matter of law a safety-related
control argument based on the employment of on-site safety
representatives who could stop work. Id. at 293, 468 (citing Farabaugh v.
Pennsylvania Turnpike Commission, 590 Pa. 46, 911 A.2d 1264 (Pa. 2006}).
The Beil Court ultimately concluded " ... that a property owner retaining a
certain degree of authority over safety issues, such as supervising and
enforcing safety requirements, and even imposing its own safety
requirements at a work site, does not constitute control for purposes of
imposing liability." kl Turning to the question of whether control over access is sufficient to
invoke the exception, the Beil Court rejected Plaintiffs' arguments that
control was established by contract provisions requiring compliance with
Lafayette College's rules and that Telesis obtain permission to enter the
building; the College's control over the placement of the scaffold; and,
significant to the instant matter, the College's separate hiring of MPS,
outside of the general contractor. Id. at 295, 469-470. Rejecting Plaintiffs'
two theories of control, the Beil Court noted that one must differentiate
control over the operational detail or manner of work and control over
the building in which the work is conducted. Id. at 295-296, 470. The clear
focus on control must be over the substantive performance of the work.
14 -.
KL at 296, 470. The Court highlighted that a landowner must maintain
some control over an independent contractor in relation to access to the
property and safety; however, such matters are tangential to the
substantive work of the contractor and subcontractors over which control
must be exercised to invoke the exception. kl at 297, 470-471.
Recently, in a case similar to Beil, the Pennsylvania Superior Court
reversed the trial court's denial of a landowner's motion for judgment
notwithstanding the verdict because the landowner did not retain control
over the manner of the work of its independent contractor. Nertavich v.
PPL Electric Utilities, 100 A.3d 221 (Pa. Super.2014). In Nertavich v. PPL
Electric Utilities, an employee of an independent contractor, QSC, hired to
paint PPL's electric transmission poles sued PPL after he sustained injuries
from falling 40 feet off one of the poles. Kt at 223. The various facts the
Nertavich Court considered in relation to the question of retained control
are as follows: pursuant to the contract, QSC was required to follow PPL's
detailed requirements for painting, including the type of paint and how to
apply the paint; PPL had a field representative who served as a daily
source of contact for procedures, quality assurance and safety; the PPL
field representative could stop the contractor's work for safety violations;
PPL limited access at times to the property; and, PPL provided ladders for
QSC's use in performing at the worksite. Id. at 223- 232, 235. The
Nertavich Court concluded that PPL's quality specifications did not
15 -- demonstrate that it retained control over the worksite because such
specifications were not related to Plaintiff's fall and that PPL had hired
QSC as painting experts. kl at 232. Also, the contract specified that QSC
was responsible for its own climbing and personal protective equipment.
kl Although QSC requested ladders from PPL, PPL providing the ladders is
not evidence that it retained control over the workslte because PPL did
not mandate use of its ladders and only provided them when QSC was
not able to obtain them otherwise. kl at 238-239. Further, the Nertavich
Court relied on the holding of the Beil Court in finding that any control PPL
may have had over safety or access to the property was not sufficient, as
a matter of law, to establish the control necessary to implicate the
retained control exception. Id. at 232-233, 236.
In the instant matter, it is clear, as a matter of law, that Bollinger did
not retain control over the work being conducted on the Property
sufficient to overcome the general rule against liability of a landowner
who employs an independent contractor. As a general rule, Bollinger is
not liable in this action for Tim Rice's death because she hired S&S Home
Builders as the general contractor for the construction project on the
Property. See Beil, 608 Pa. 273, 11 A.3d 456. To impose liability on Bollinger,
Plaintiffs must demonstrate that an exception to the general rule, such as
retained control, applies. See id. As will be discussed below, the facts
""''······--·--·--·--- .-- demonstrate that, as a matter of law, Bollinger may not be held liable in
the instant matter.
Taking the relevant facts in the light most favorable to Plaintiffs, the
record reflects as follows: Bollinger entrusted the construction project to
S&S Home Builders and George as the general, independent contractor;
Bollinger did not complete any construction work on the Property;
Bollinger approved building plans which included a wooden rail for the
stairwell in the home; Bollinger instructed George and S&S Home Builders
not to install the wooden rail; George informed Bollinger that he would not
install the modern rail which she preferred over the wooden rail; S&S
Home Builders reduced the contract price for the home by the cost for
the purchase and installation of the wooden rail; and, Bollinger hired her
own construction company to install the modern rail. A review of the
relevant Pennsylvania law demonstrates that such facts fail, as a matter of
law, to demonstrate that Bollinger retained control over the construction
project on the Property.
First and foremost, the record reflects that Bollinger had no control
over the manner in which S&S Home Builders, or any of the contractors,
completed the work for which they were hired. See Restatement
{Second) of Torts § 414; Beil, 608 Pa. 273, 296, 11 A.3d 456, 470. Bollinger
was not a contractor and retained no control over the manner in which
any of the contractors completed their work. Although Bollinger approved
17 · -·
the building plans, this is not control over the manner in which the
contractors executed those plans. Additionally, Plaintiffs' arguments that
Bollinger retained control of the construction site by ordering that the
wooden rail not be installed and by hiring her own contractor to install the
modern rail fail under the applicable case law. Simply changing the type
of rail is not the type of necessary control contemplated by the law.
Comment c to Restatement Section 414 specifically states that it is not
sufficient to establish retained control that the individual has the right to
order work stopped or prescribe alterations and deviations. Restatement
(Second) of Torts§ 414, Comment c. Bollinger's actions in relation to the
installation of the rail reflect merely that she had the right to stop the
installation and alter the chosen rail. Further, Bollinger's direct hiring of
another contractor does not reflect retained control pursuant to Beil. In
Beil, the Court clearly rejected a similar argument by Plaintiffs that
retained control was established through the College's hiring of MPS
outside of the general contractor. Indeed, it is evident in the instant
matter that Bollinger did not even come dose to exerting the type of
control required by Beil and Nertavich to overcome the general rule of
non-liability of a landowner.
18 Liability of General Contractor and Subcontractor to another Subcontractor {Harold Rice/HR Rice and Richard George!S&S Home Builders)
Finally, summary judgment in favor of George, S&S Home Builders,
and Hal Rice is proper because, generally, " ... a contractor is not liable for
injuries resulting from work entrusted to a subcontractor." See Leonard v.
Commonwealth, 565 Pa. lOL 105, 771 A.2d 1238, 1240 (Pa. 2001) (internal
citation omitted). The law governing the issue of retained control for
landowners, as discussed above, is the same as that which governs
liability of contractors who entrust work to another independent
contractor. See Beil, 608 Pa. 273, 11 A.3d 456; id.; Restatement (Second}
of Torts § 409.
A recent decision from the United States District Court for the
Eastern District of Pennsylvania demonstrates the application of the
retained control exception to general contractors and subcontractors. In
Yazujian v. Jacobs Proiect Management, the United States District Court
for the Eastern District of Pennsylvania granted summary judgment in favor
of a general contractor in relation to an injury sustained by an employee
of one of its subcontractors. Yazujian v. Jacobs Project Management,
2013 WL 5948025 (E.D. Pa. 2013). Defendant Jacobs was the general
contractor for a construction project at Amtrak's 30th Street Station in
Philadelphia. kt at *l. Jacobs subcontracted the demolition work on the
project to Defendant M&G who employed Plaintiff as a construction
19 laborer. ld. Plaintiff was injured when he was standing on a ladder cutting
away sections of a ceiling and a piece of the ceiling fell, knocking him off
the ladder. kl at *3. Plaintiff filed a complaint based in negligence
against Jacobs and various other defendants. Relevant to the instant
matter is Defendant Jacobs's motion for summary judgment.
The Yazujian Court began its analysis of the motion for summary
judgment by stating:
It is a well settled general rule in Pennsylvania that 'the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. Id. at *4 (citing Beil, 608 Pa. 273, 11 A.3d 456, 466 (quoting Restatement (Second} of Torts§ 409}}.
The Court then explained the retained control exception to the general
rule against liability by citing Beil and Restatement {Second} of Torts
Section 414. Id. at *4 - *5.
Turning to the facts of the case before it, the Yazujian Court first
found the contractual language between Jacobs and M&G insufficient
to establish that Jacobs retained control over M&G. kl at *7 - *8. Pursuant
to the contract, Jacobs could take whatever action it deemed necessary
to prevent injury in the event that it obtained knowledge of a safety
violation. kl at *7. Relying on Beil and Leonard, the Court highlighted that
control over safety is not control over the manner of the work and to
impose liability over safety provisions would be contrary to public policy.
20 kl The Court also found unconvincing general contract language that
allowed Jacobs to stop work upon any failure by M&G to perform under
the contract. kl at *8.
The Yazuiian Court also rejected any argument that Jacobs
exercised actual control over M&G. ld. The action by Jacobs which the
Court found unconvincing was the project manager's oversight of
performance and safety. kl Specifically, the Court explained that Jacobs
did nothing to dictate to M&G the manner in which it proceed with its
demolition work such that it led to Plaintiff's injuries. Id. at *9. Accordingly,
the Court granted summary judgment in favor of Jacobs, the general
contractor. ls;L_
Richard Georqe/S&S Home Builders
Applying the law to the facts of the instant matter, it is clear that
neither George, nor S&S Home Builders, the general contractors, retained
control over the work of either Hal Rice or Tim Rice, such that either could
be liable for the death of Tim Rice at the construction site. To begin this
analysis, it is necessary to clarify the roles of George and S&S Home
Builders. Bollinger directly hired S&S Home Builders as the general
contractor for construction of the home on the Property. George is the
sole owner of S&S Home Builders and has responsibility for supervising
each of its construction projects which are completed by subcontractors.
Accordingly, both essentially served as the general contractor of the
21 Bollinger construction, with George acting as the agent to carry out the
activities of S&S Home Builders. Thus, both are protected from liability for
the actions of Tim Rice, a subcontractor. Taking the facts relevant to any
liability by George and/or S&S Home Builders in the light most favorable to
Plaintiffs, the record reflects as follows: S&S Home Builders is in the business
of building homes through the hiring of subcontractors; S&S Home Builders
subcontracted the painting job on the project to Hal Rice who then
subcontracted certain aspects of the painting to Tim Rice; George
supervised the building for S&S Home Builders; George inspected the site
after each subcontractor completed work; George observed the safety
measures utilized by each subcontractor; S&S Home Builders would dismiss
any contractor not working in a safe manner; S&S Home Builders and
George did not direct Hal Rice as to how the pointing should be
completed; S&S Home Builders did not provide supplies to Hal Rice; S&S
Home Builders did not direct safety protocols to Hal Rice; and, upon hire,
S&S Home Builders provided Hal Rice with the location, needs, and
deadline for the job.
As independent contractors, both S&S Home Builders and George
are protected from liability in the instant matter under the laws of this
Commonwealth. See Leonard v. Commonwealth, 565 Pa. 101, 105, 771
A.2d 1238, 1240 (Pa. 2001) (internal citation omitted}. The record reflects
that neither George, nor S&S Home Builders retained control over the
22 painting of the home, such that either could be liable for Tim Rice's death.
Although George oversaw the completion of each subcontractor's work,
such oversight is insufficient to establish the type of control necessary to
invoke the exception. See Restatement (Second) of Torts§ 414, Comment
c. Also, Pennsylvania Courts have continually held that control over safety
is not sufficient for establishing retained control, and, to hold otherwise
would be against public policy. See Nertavich, 100 A.3d at 232-233, 236;
Yazujian, 2013 WL 5948025 at *7; Beil, 608 Pa. 273, 11 A.3d 456. Ultimately,
the record lacks any facts demonstrating that either George or S&S Home
Builders retained any form of control over the manner in which the
painting work on the construction project was completed.
Harold Rice /HR Rice
Likewise, the facts of the instant matter fail to establish that Hal Rice
retained control over the manner in which Tim Rice completed his work
such that liability may be imposed. Taking the facts relevant to any liability
by Hal Rice in the light most favorable to Plaintiffs, the record reflects as
follows: Hal Rice often hired subcontractors to assist with his painting jobs;
Hal Rice ordered and supplied the paint to his subcontractors; Hal Rice
did not provide supplies or scaffolding to his subcontractors; Hal Rice
would inspect the premises to determine how much paint was needed
and whether the premises were ready for paint; Hal Rice could dismiss his
subcontractors; and, the contract which Hal Rice had his subcontractors
23 sign required that the subcontractor provide his/her tools and that the
subcontractor was solely responsible for safety and insurance.
As discussed at length above, Hal Rice's ability to inspect the
premises to determine the needs and status of the job fails as a matter of
law to establish retained control. See Restatement {Second} of Torts§ 414,
Comment c. Further, it is evident that Hal Rice did not in any way dictate
the manner in which Tim Rice completed his work. Contractually and in
reality, subcontractors for Hal Rice used their own tools and took
responsibility for their own safety. There are simply no facts demonstrating
that Hal Rice controlled the performance of Tim Rice's work, an essential
component to the retained control exception. See Nertavich, 100 A.3d
221; Yazujian, 2013 WL 5948025; Beil, 608 Pa. 273, 1 l A.3d 456.
Conclusion
Finally, Plaintiffs fail to highlight in the record any dispute of material
fact that would make the entry of summary judgment in favor of Bollinger,
George, S&S Home Builders, or Hal Rice/HR Rice improper. Based on
Pennsylvania law as set forth at length above, Defendant Judith
Bollinger's Second Motion for Summary Judgment, Defendants Harold
Rice and/or Harold Rice d/b/a HR Rice Custom Painting's Motion for
Summary Judgment, and Defendants Richard George and S&S Home
Builders, lnc.'s Motion for Summary Judgment are hereby GRANTED.
(END OF OPINION}