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Staub v. Toy Factory3/23/2000
er in Carrara's control because "the possessor" accepted the work, then § 385 applies. That section provides that one who on behalf of a possessor of land erects a dangerous structure or creates any other dangerous condition on the land is subject to liability to others for physical harm caused by the dangerous character of the structure or condition after the possessor accepts his work under the rules used to determine the liability of one who makes a chattel for the use of others. Restatement (Second) of Torts § 385; Prost v. Caldwell Store, Inc., 409 Pa. 421, , 187 A.2d 273, 277 (1963).
33 The rules applicable to makers of chattels, however, differ from the rules applicable to possessors of land. See Restatement (Second) of Torts §§ 394-398, 403-404, applicable to those to whom § 385 applies. Id. at § 385 cmt. (a). Thus, in order to determine the extent of Carrara's duty, the jury must resolve the factual issue whether Carrara "was in control of the work" or whether the work had been accepted by the "possessor."
34 We also agree with the trial court that a jury must resolve other issues of material fact relevant to Carrara. For example, while Carrara admitted responsibility for cutting the holes in the roof, Carrara employees testified during their depositions that Carrara only agreed to cut the holes after Karl Kenyon promised that Grimm would cover or otherwise protect the holes. (R.R. at 254a-256a, 258a, 264a-266a, 268a-269a.) Mr. Kenyon, on the other hand, testified that he did not discuss with anyone who would be responsible for covering the holes. (Id. at 168a, 175a-176a.) Thus, a material issue of fact exists as to whether Carrara knew or had reason to know that its work made the roof dangerous, or whether Grimm created the dangerous condition when it did not cover the holes as it allegedly promised to do. Restatement (Second) of Torts, §§ 385, 403. A material issue of fact also exists as to whether Carrara negligently cut the holes for purposes of §§ 385 and 404, based on the same conflicting testimony. As a result, we find no error in the trial court's determination that Carrara was not entitled to summary judgment on this basis.
35 For all of the foregoing reasons, we affirm trial court's denial of summary judgment as to appellees' duty, and reverse the trial court's entry of summary judgment as to assumption of risk.
36 Affirmed in part, reversed in part, and remanded. Jurisdiction relinquished.
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