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Farabaugh v. Pennsylvania Turnpike Commission9/13/2004
ich NESL performed its work. See, e.g., Commission Appendix, Deposition of Black, p. 31, R. 366a.
The Commission and Trumbull argue that in Leonard the Supreme Court held that for one contractor to be liable for an injury to an employee of another, the one to be held liable must be present and in control of the work of the other at the time of injury. They further point out that in Blewitt v. Man Roland, Inc., 168 F. Supp.2d 466 (E.D. Pa. 2001), the court held that under Section 324A of the Restatement a plaintiff must establish negligent performance of an undertaking and another element, such as increase in the risk of harm, and that negligent inspection does not increase the risk of harm. They note that in Heath the defendant was the consulting engineer, whose design failed to include bracing necessary to prevent collapse of a trench, thus increasing the risk of harm.
After close scrutiny of the record, the Court determines that Trumbull owed a duty to Decedent and that the trial court erred in holding otherwise. The extensive contractual commitments by Trumbull, see n1, are rendered a nullity if it is held that Trumbull had no enforceable safety obligations. Several witnesses testified that Trumbull's safety representative had the power and the duty to stop work on the project and to require that safety problems be corrected. Trumbull agreed to monitor the safety of the operations of all of the contractors. No valid basis exists for excluding haul roads, which this record shows can be sources of great danger, from the scope of Trumbull's undertaking. If the monitor saw an imminent danger with use of a haul road, he could tell a worker to stop using it until it was corrected. Joint Appendix, Ex. G, Deposition of Carey, p. 35, R. 526a.
IV.
Finally, Farabaugh contends that the trial court erred in holding that the Commission was protected by sovereign immunity. Under 42 Pa. C.S. §8522(a), a party first must state a claim for damages from a negligent act that would be recoverable against one not having the defense. Farabaugh notes that the general rule that the employer of an independent contractor is not liable for physical harm caused to another by any act or omission of the contractor or his servant does not apply where the owner "retains significant control over work delegated to the contractor." Lorah v. Luppold Roofing Co., Inc., 622 A.2d 1383, 1384 (Pa. Super. 1993). Factors such as showing the videotape with Commission safety requirements to all employees, the conducting of regular inspections by Commission representatives and by its agent the insurance/safety monitor and the authority of these persons to stop or suspend work when necessary to enforce safety at a minimum create a jury issue as to whether the Commission retained sufficient control over the premises to meet the exception to the general rule.
The Commission and Trumbull respond that an owner who is out of possession and without control owes no duty to employees of the independent contractor to whom the premises are entrusted. Emery v. Leavesly McCollum, 725 A.2d 807 (Pa. Super. 1999). In Emery the court stated that even frequent visits by the owner to observe progress and to ascertain that work was being performed in accordance with the contract did not indicate that the owner retained control over the contractor's work. They argue that there is no evidence here that the Commission assumed control of the premises or the work and also that the real estate exception to sovereign immunity in 42 Pa. C.S. §8522(b)(4) does not apply because the state may not be held vicariously liable for the negligent acts of a contractor. The state was immune when a pedestrian fell on a state street made da
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