Zangrandi v. Kay Builders

26 Pa. D. & C.5th 501
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedJuly 24, 2012
DocketNo. 2011-C-4077
StatusPublished

This text of 26 Pa. D. & C.5th 501 (Zangrandi v. Kay Builders) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zangrandi v. Kay Builders, 26 Pa. D. & C.5th 501 (Pa. Super. Ct. 2012).

Opinion

REIBMAN, J.,

Plaintiff, Gelson Zangrandi, has brought suit seeking recovery for damages alleged to have resulted when he slipped and fell off a roof upon which he had been laboring in the course of his employment with defendant Lima Construction, LLC (“Lima”), which had been hired by defendant Kay Builders (“Kay”) to perform work on a home under construction. Kay moves for summary judgment, arguing there is no evidence indicating it retained sufficient control over the work being performed by the subcontractor that employed plaintiff so as to incur liability for plaintiff’s injuries resulting from the fall. For the reasons explained below, the motion will be granted.

H — I

Kay owned a building lot and had hired Lima as [503]*503independent contractor to provide framing services on a newly constructed home to be built in accordance with blue-print specifications provided by Kay. (See dep. of plaintiff, at def. mot. sum J. ex. A; see also id. ex. C.) Consistent with that arrangement, Lima hired various workmen, including plaintiff, to frame the structure and install plywood sheathing on the roof. (See id.; see also dep of A. Silva, at def. mot sum J., ex. B.) On January 29, 2010, plaintiff was working on the roof and lost his footing. (Ibid.) Because no “cleat” had been nailed on the roof as a safety precaution to arrest the descent of a fallen worker, plaintiff cascaded off the ledge and incurred injuries including broken wrists as a result of his fall. (See pi. complaint.)

Plaintiff’s employer, Lima, enjoys workers’ compensation immunity for any damages. Plaintiff, however, seeks recovery from Kay, alleging that it was responsible for the worksite and, through its personnel who provided daily inspections to ensure conformance of the work to the plans, retained control over the work. As such, plaintiff maintains Kay is liable for common-law negligence based, in part, on alleged noncompliance with OSHA regulations, found at 29 C.F.R. § 1926.16, which impose joint responsibility on prime and subcontractors for worksite safety. Kay counters that the record in this matter fails to present an issue of material fact sufficient to support a conclusion that it retained control to the extent required under the decisional law so as to incur liability for an injury sustained by an employee of a subcontractor.

II.

[504]*504Summary judgment is appropriate when there exist “no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Sphere Drake Ins. v. Phila. Gas Works, 566 Pa. 541, 545, 782 A.2d 510, 512 (2001). In applying this test, the court must view 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.” Washington v. Baxter, 553 Pa. 434, 440, 719 A.2d 733, 736 (1998). Additionally, summary judgment should be granted “only in those cases which are free and clear from doubt.” Id. Summary judgment is proper, however, when a “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. No. 1035.2 (2); Ertel v. Patriot News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1041-42 (1996). Furthermore, a trial court is not required to scour the record to identify facts of record precluding entry of summary judgment when the non-moving party has failed to do so. See Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100, 1105 (Pa. Super. 2000).

It has long been the general rule in Pennsylvania that “an owner of property does not have a duty to protect the employees of an independent contractor from risks arising from or created by the j ob contracted. ” LaChance v Michael Baker Corp. 869 A.2d 1054, 1057 (Pa. Cmwlth. 2005) (citing Celender v Allegheny County Sanitary Authority, 222 A.2d 461, 463 (Pa.Super. 1966)). In LaChance, Penn-DOT had awarded a road-construction contract to Baker [505]*505Heavy & Highway, Inc. Id. at 1055. Plaintiff, an employee of Baker, was fatally injured when a trench collapsed pressing him against a pipe on which he had been working. Id. at 1055. In determining whether the record included evidence sufficient to impose liability on PennDot, the court examined Section 414 of the second restatement of the law on torts rather extensively. It noted that in the event an owner retains control over the work, liability will result from the failure to exercise such control with reasonable care. However, in scrutinizing this provision of the restatement, the court underscored the following points contained in comment c of section 414, noting:

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.

Id. at 1058-59 (emphasis supplied by LaChance). Thus, notwithstanding the fact that PennDot had exercised its contractual “inspection rights... to assure itself that Baker performed its work safely,” had engaged in “contractor [506]*506performance reviews,” and even had a field inspector direct that the subject pipe work be performed so as to comply with contract specifications, the court declined to find that such activities constituted sufficient control over the manner of work to satisfy section 414’s requirements, especially where there was no evidence that PennDOT directed the activities relating to inadequate bracing of the trench that resulted in the accident.

Id. at 1061-62.

Likewise, the issue of sufficient retention of control was squarely confronted by the Pennsylvanian Supreme Court in Hader v. Coplay Cement Co., 410 Pa. 139, 189 A.2d 271 (1963). In that case, the defendant hired an independent contractor to install a stone crusher and surrounding building on its premises. Id. at 273. In the course of the project, the plaintiff, an employee of the contractor, sustained injuries when he fell from the structure. Id. at 274.

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Related

Byrd v. Merwin
317 A.2d 280 (Supreme Court of Pennsylvania, 1974)
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)
Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership
764 A.2d 1100 (Superior Court of Pennsylvania, 2000)
LaChance v. Michael Baker Corp.
869 A.2d 1054 (Commonwealth Court of Pennsylvania, 2005)
Ertel v. Patriot-News Co.
674 A.2d 1038 (Supreme Court of Pennsylvania, 1996)
Leonard v. COM., DEPT. OF TRANSP.
771 A.2d 1238 (Supreme Court of Pennsylvania, 2001)
Bullman v. Giuntoli
761 A.2d 566 (Superior Court of Pennsylvania, 2000)
Celender v. Allegheny County Sanitary Authority
222 A.2d 461 (Superior Court of Pennsylvania, 1966)
Sphere Drake Insurance v. Philadelphia Gas Works
782 A.2d 510 (Supreme Court of Pennsylvania, 2001)
Washington v. Baxter
719 A.2d 733 (Supreme Court of Pennsylvania, 1998)

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Bluebook (online)
26 Pa. D. & C.5th 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zangrandi-v-kay-builders-pactcompllehigh-2012.