Stewart v. O.C. Cluss Lumber Co.

7 Pa. D. & C.5th 369
CourtPennsylvania Court of Common Pleas, Beaver County
DecidedFebruary 9, 2009
Docketno. 10513-2007
StatusPublished

This text of 7 Pa. D. & C.5th 369 (Stewart v. O.C. Cluss Lumber Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Beaver County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stewart v. O.C. Cluss Lumber Co., 7 Pa. D. & C.5th 369 (Pa. Super. Ct. 2009).

Opinion

KWIDIS, J.,

Before this court is defendant James Crespo’s, individually and trading and doing business as Crespo Contracting Company, motion for summary judgment. No material issues of fact exist regarding the defendant Crespo’s liability, and therefore, the motion is granted.

Defendant O.C. Cluss Lumber Company Inc., a subcontractor of defendant Kate Inc., subcontracted to defendant Crespo the framing work on building number 1 in a complex of new condominiums, the Fairways at Krendale, being built in Butler, Pennsylvania. In addition to the general framing work, defendant Crespo was subcontracted to construct storage areas and install shingles, weather guard and skylights in building number 1, as well as move and extend walls in the kitchen, bathrooms, [371]*371and hallways, cut and move doorways in garages, and move studs for electrical panels.

Defendant O.C. Cluss also subcontracted to L. Stewart Homes the painting work at the Fairways at Krendale project. Jeffrey Stewart, now deceased, was an employee of L. Stewart Homes Inc.

On March 29, 2006, Jeffrey Stewart, deceased, was painting the ceiling of unit 206 when he fell from an unprotected second floor landing/balcony approximately nine to 10 feet to the concrete floor below. When he fell, Mr. Stewart struck his head, crushing his facial bones. His injuries led to his death the following day, March 30, 2006.

At the time of the accident, no railings, guard rails, fall protection, and/or other protective barriers were in place to prevent workers along the second floor balcony from falling to the floor below.

On June 17, 2006, plaintiff Renee Stewart, as the administratrix of the estate of Jeffrey Stewart, filed a complaint alleging, in part, that defendant Crespo was negligent because: (1) he failed to install temporary guard rails and/or railings along the balcony and/or removed the same prior to the decedent’s working in that area, in violation of defendant Crespo’s contract, duties, and responsibilities as the framing subcontractor; and (2) he failed to properly supervise, manage, or exercise control over the work site so that it was safe for the workmen.

On September 22,2008, defendant Crespo filed a motion for summary judgment alleging that no material question of fact existed. Specifically, defendant Crespo alleged that he had no contractual obligation to erect a [372]*372temporary railing during the construction of unit 206. He also alleged that he had completed his work in unit 206 by the end of January 2006, which was approximately two months prior to the accident, and therefore, that he did not have possession or any control of the property on March 29, 2006.

Under the Pennsylvania Rules of Civil Procedure, summary judgment may be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). The Supreme Court explained that “[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.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991) (citing Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970)). The Supreme Court further elaborated that “where the facts can support conflicting inferences, it cannot be said that the case is free and clear from doubt and thus ripe for summary judgment.” Washington v. Baxter, 553 Pa. 434, 447 n.10, 719 A.2d 733, 740 n.10 (1998) (citing Marks, supra at 135, 589 A.2d at 206).

For purposes of determining whether the grant of summary judgment is precluded, the court must consider the following factors: (1) whether the plaintiff has alleged facts sufficient to establish aprima facie case; (2) whether there is any discrepancy as to any facts material to the case; and (3) whether granting summary judgment would result in the trial court usurping the role of the jury by [373]*373resolving material issues of fact. Dudley v. USX Corporation, 414 Pa. Super 160, 606 A.2d 916 (1992); Swords v. Harleysville Insurance Companies, 584 Pa. 382, 883 A.2d 562 (2005).

Under these guidelines, this court has proceeded to analyze the controlling cases involving subcontractor liability.

To establish a cause of action in negligence there must be a duty recognized by the law; breach of that duty by the defendant; a causal connection between the defendant’s breach of that duty and the resulting injury; and actual loss or damage suffered. Reilly v. Tiergarten Inc., 430 Pa. Super. 10, 14, 633 A.2d 208, 210 (1993). In Pennsylvania, a party to a contract has two duties: a contractual duty and a legal duty to act without negligence towards both the other party to the contract and third parties. See Prost v. Caldwell Store Inc., 409 Pa. 421, 425, 187 A.2d 273, 275 (1963); Bisson v. John B. Kelly Inc., 314 Pa. 99, 110, 170 A. 139, 143 (1934); St. Clair v. B&L Paving Company, 270 Pa. Super. 277, 279, 411 A.2d 525, 526 (1979).

Specifically, the Pennsylvania Supreme Court has held that a subcontractor owes to the employees of other subcontractors on the same site the same legal standard of care due to a business visitor from a possessor of land. McKenzie v. Cost Brothers Inc., 487 Pa. 303, 307-308, 409 A.2d 362, 364 (1979). A possessor of land owes to business visitors the duty to protect against conditions that he or she: (1) knows of or by the exercise of reasonable care would discover and should realize they pose an unreasonable risk of harm to such visitors; and (2) should expect that visitors will not discover or realize [374]*374the danger, or will fail to protect themselves against it; and (3) fails to exercise reasonable care to protect such visitors against the danger. Id. at 308 n.3, 409 A.2d at 364 n.3.

The Superior Court applied these principles in the case of Weiser v. Bethlehem Steel Corporation, 353 Pa. Super. 10, 508 A.2d 1241 (1986). In the Bethlehem Steel case, the plaintiff was injured when he fell down a temporary elevator shaft from the 12th floor of a high rise building in Philadelphia, Pennsylvania. Id. at 13-14, 508 A.2d at 1243. The plaintiff, who was an employee of Fabricated Steel, a subcontractor of the general contractor, slipped and fell down the shaft as no temporary planking was in place to protect him. Id.

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Related

Hader v. Coplay Cement Mfg. Co.
189 A.2d 271 (Supreme Court of Pennsylvania, 1963)
Washington v. Baxter
719 A.2d 733 (Supreme Court of Pennsylvania, 1998)
Weiser v. Bethlehem Steel Corp.
508 A.2d 1241 (Supreme Court of Pennsylvania, 1986)
McKenzie v. Cost Bros., Inc.
409 A.2d 362 (Supreme Court of Pennsylvania, 1979)
St. Clair v. B & L PAVING CO.
411 A.2d 525 (Superior Court of Pennsylvania, 1979)
Reilly v. Tiergarten Inc.
633 A.2d 208 (Superior Court of Pennsylvania, 1993)
Swords v. Harleysville Insurance Companies
883 A.2d 562 (Supreme Court of Pennsylvania, 2005)
Marks v. Tasman
589 A.2d 205 (Supreme Court of Pennsylvania, 1991)
Prost v. Caldwell Store, Inc.
187 A.2d 273 (Supreme Court of Pennsylvania, 1963)
Dudley v. USX Corp.
606 A.2d 916 (Superior Court of Pennsylvania, 1992)
Bisson v. John B. Kelly, Inc.
170 A. 139 (Supreme Court of Pennsylvania, 1933)
Davis v. Pennzoil Co.
264 A.2d 597 (Supreme Court of Pennsylvania, 1970)
Washington v. Baxter
719 A.2d 733 (Supreme Court of Pennsylvania, 1998)

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Bluebook (online)
7 Pa. D. & C.5th 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-oc-cluss-lumber-co-pactcomplbeaver-2009.