Nertavich v. Ppl Elec. Utils., 2014 Pa. Super 184 (Pa. Superior Court, 2014)

Posted by on Jan 16, 2015 in Uncategorized

Summary:

An electric company did not retain sufficient control of the premises to subject it to liability in an action by an employee of an independent contractor, because the evidence did not show that it “retained control” of the job site based upon the contractual provisions between the parties or based on its actual conduct. 

Facts:

Plaintiff obtained a judgment for the injuries he sustained when he fell 40 feet while working as the employee of an independent contractor hired to paint PPL’s electric transmission poles. The PPL Specification document contained a variety of detailed requirements about the job. It prescribed each step how to paint the poles.  However, Plaintiff’s fall had nothing to do with these quality specifications. Rather, he fell when the ladder he tied off on wobbled, and the single lanyard he used as fall protection slid off the rung. There were no provisions in the contract between Plaintiff’s employer and PPL that instructed the employer how to climb the poles safely to complete the painting work.  Rather, the contract specifically provided that the contractor was “responsible for all climbing assist and rigging equipment necessary to complete this painting contract in an efficient manner”and that it “shall be responsible to provide all personal protective equipment for all contractor personnel.”

Highlights:

  • Plaintiff failed to establish that PPL retained control over the manner, methods, means, and operative detail of the work of Plaintiff’s employer that was sufficient to overcome the general rule that an owner owes no duty to the employees of an independent contractor.
  • This 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.”
  • One 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 § 414 (1965).
  • Section 414 of the Restatement provides the most commonly used test for determining whether an employer/landowner retained sufficient control. More precisely, comment c speaks to the degree of control necessary for the exception to overcome the general rule against liability. Comment c makes manifest that the right of control must go beyond a general right to order, inspect, make suggestions, or prescribe alterations or deviations, but that there must be such a retention of the right of supervision that it renders the contractor not entirely free to do the work in his own way.
  • A plaintiff may also point to contractual provisions giving the premises owner control over the manner, method, and operative details of the work. Alternatively, the plaintiff may demonstrate that the land owner exercised actual control over the work.
  • A property owner may retain a certain degree of authority over safety issues, as well as regulate the use of and access to buildings, without “retaining control” of the premises for liability purposes. With regard to safety, “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.” Rather, a property owner’s interest in monitoring the safety of its contractors constitutes sound public policy.
  • Further, regulation of the use of and access to a building is “tangential to the substantive work of the contractor, and subcontractor” and “did not control the way the workers did their work.”
  • PPL’s quality specifications had nothing to do with Plaintiff’s accident. PPL did not instruct or direct workers how to tie off to the pole, how to climb the pole, or which equipment to use.