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Farabaugh v. Pennsylvania Turnpike Commission9/13/2004
ngerous by negligence of the gas company excavator, where the state took no action and was in no way involved in the excavation. Miranda v. City of Philadelphia, 646 A.2d 71 (Pa. Cmwlth. 1994). Further, the haul road was created by NESL, and the owner cannot be liable for dangerous conditions created by the contractor. Colloi v. Philadelphia Electric Co., 481 A.2d 616 (Pa. Super. 1984).
The Court agrees with Farabaugh that the trial court erred in holding the Commission to be immune from suit. The allegations do state a claim of injury due to a defective condition of land within the meaning of 42 Pa. C.S. ยง8522(b)(4); however, the Commission's liability is not based merely upon its status as owner of the land at issue. See Miranda. Rather, the Commission is charged with the same degree of control as Trumbull exercised. The contract specified that the insurance/safety monitor supplied by Trumbull to perform the safety duties undertaken by Trumbull was to serve as the agent of the Commission in safety matters. Accordingly, the Court holds that because the Commission exercised the same degree of control over the workplace as Trumbull did, the trial court erred in finding that the Commission was immune as an owner out of possession. Therefore, for the reasons indicated, the order of the court of common pleas is reversed and this case is remanded for further proceedings.
ORDER
AND NOW, this 13th day of September, 2004, the order of the Court of Common Pleas of Allegheny County is reversed, and this case is remanded consistent with the foregoing opinion.
Jurisdiction is relinquished.
DORIS A. SMITH-RIBNER, Judge
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