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Staub v. Toy Factory3/23/2000
rief filed or to be filed on behalf of Carrara. (Grimm's brief on reargument at 12, citing Pa.R.App.P. 2137.) After this court granted reargument, Grimm joined in and adopted only pages 6-14 of Carrara's supplemental brief, addressing assumption of risk. (Grimm's supplemental brief on reargument at 7 n.3, citing Pa.R.App.P. 2137.)
28 We are unable to determine from the state of this record, however, whether Grimm, like Carrara, is merely an independent contractor or whether Grimm's relationship with Toy Factory requires a different analysis. See Weiser v. Bethlehem Steel Corp., 508 A.2d 1241, 1245 (Pa.Super. 1986) ("In order to ascertain the extent of Bethlehem Steel's legal duty to Weiser, we must first establish the relationship between the two "). Grimm may also or instead be the possessor of land, the employer of an independent contractor, and/or the general contractor. Depending on its status, Grimm may be entitled to immunities to which Carrara is not entitled or subject to liabilities to which Carrara is not exposed.
29 The trial court did not determine Grimm's status, concluding only that if Grimm is found to be a possessor of land, then § 343A of the Restatement (Second) of Torts provides the relevant standard. (Trial court opinion, 11/5/97 at 9.) That section provides in pertinent part that " possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A(1) (1965) (emphasis added). Furthermore, according to the trial court, a material issue of fact existed as to whether Grimm should have anticipated the harm despite its obviousness. (Trial court opinion, 11/5/97 at 9.) Nevertheless, because Grimm has not adequately argued the duty issue to this court, and because Carrara's status vis-a-vis appellant may differ from Grimm's, we find that the duty issue as it pertains to Grimm is not ripe for our review.
30 We are likewise unable to resolve on appeal some of the factual issues necessary to determining the extent of Carrara's duty to appellant under §§ 384 and 385 of the Restatement, applicable to one who on behalf of a possessor of land creates a dangerous condition on the land. We therefore find no error in the trial court's refusal to grant Carrara's motion for summary judgment on this basis. As both the trial court and Carrara correctly note, "A subcontractor on a construction job owes to employees of other subcontractors, on the same site, the care due a business visitor from a possessor land." McKenzie v. Cost Bros., 487 Pa. 303, , 409 A.2d 362, 364 (1979), citing Stringert v. Lastik Products Co., 397 Pa. 503, 155 A.2d 625 (1959). The supreme court has expressly adopted sections 384 and 343 of the Restatement "as being applicable in such situations." McKenzie, supra at , 409 A.2d at 364. As noted supra, a possessor of land, and therefore an independent contractor, may be liable even for known or obvious dangers if the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts § 343A(1).
31 Section 384 and, through it, § 343A apply to Carrara, however, only if the work was still in its charge. Restatement (Second) of Torts § 384; Weiser, 508 A.2d at 1245 (under Pennsylvania law, one who constructs a building or creates a condition on behalf of a possessor of land has the same liability as a possessor of land for physical harm caused to others by the dangerous character of the building or condition while it is in his control).
32 In contrast, if the work was no long
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