This is a consolidated appeal in two trespass actions from the lower court's denial of appellant United States Steel Corporation's motions for judgment n.o.v. and for a new trial.
A jury trial ended in substantial verdicts in favor of plaintiffs against the United States Steel Corporation and the Edward Gray Corporation (Gray has not filed an appeal in this matter).
Candido Gonzalez, deceased, and Vincent Cardillo, were carpenters who worked for the Edward Gray Corporation (Gray Corp.) which was employed by United States Steel to perform certain construction work at the United States Steel Duquesne, Pennsylvania plant.
After verdict in favor of plaintiffs and after consideration of appellant United States Steel's arguments based on its motions for judgment n.o.v. or for new trial, the court below, sitting en banc, denied the motions and judgments were entered upon the verdict and this appeal followed.
In consideration of the nature of the appeal, we are required to consider the evidence in the light most favorable to appellee-plaintiffs. Hargrove v. Frommeyer and Co., 229 Pa. 298, 323 A.2d 300 (1974); Karam v. Pennsylvania Power and Light Co., 205 Pa.Super. 318, 208 A.2d 876 (1965).
The construction contract called for Edward Gray Corp. to perform, inter alia, the tearing out of bricks in the No. 4 blast furnace and its four component stoves. The accident in this case occurred in the No. 3 stove, the facts of which are as follows:
A blast furnace stove is cylindrical in shape and from the outside resembles a huge tube of lipstick. The interior of a stove contains two vertical chambers. The largest interior chamber is known as a checker chamber because it is filled with bricks called checkers which are rectangular in shape and have holes in them. The smaller interior chamber is called the combustion chamber or well which is oblong in shape, completely hollow and lined with a layer of brick referred to as the skimwall. The two chambers are approximately 110 feet high.
Appellees introduced expert testimony at trial concerning the normal procedure to be followed in the tearing out of
First, some of the checkerbricks are removed from the checker chamber and thrown into the well. After the initial tearout of checkerbricks is completed, the checkerbricks remaining in the checker chamber are rodded. The rodding procedure unplugs or cleans out foreign material in the holes of the checkerbricks in the checker chamber. If holes in the checkerbricks cannot be unplugged then those checkerbricks are torn out and thrown into the well. This process of rodding continues until the holes in the remaining checkerbricks are unplugged, after which, and only after which work then commences in the well.
The next step in the procedure is to start work in the well or smaller chamber. This work consists of tearing out the lower portion of the skimwall starting from the floor and since the skimwall runs from top to bottom of the stove, some 100 feet or so, a supporting scaffolding is necessary to support that portion of the skimwall that is to remain after the lower portion of the skimwall is torn out. This scaffolding is referred to as pudlock scaffolding and once the pudlocks are in place the skimwall beneath it is removed or torn out.
The evidence indicated that if any other procedure were to be followed in the tearing out process it would be a departure from normal operations in the removal of bricks from the two chambers. After work in the skimwall had begun, United States Steel decided to remove more checkerbrick from the checker chamber. It was this decision that brought about a departure from the normal procedure. In other words, the tearing out of checkerbricks in the larger chamber after work had begun in the smaller chamber would endanger the scaffolding in the smaller chamber which supported the remaining skimwall that rose to a height of some 80 to 90 feet. The normal process of tossing checkerbrick from the larger chamber into the smaller chamber could no longer be pursued because of the possibility of
In order to avoid this danger, an enclosed wooden chute was constructed and placed in the smaller chamber by means of which checkerbricks from the larger chamber could be delivered to the floor of the smaller well or chamber without endangering the scaffolding or skimwall in the smaller chamber.
The chute was built by Gray Corporation and installed by both Gray Corporation and United States Steel; United States Steel supplied its own men and rigging equipment since Gray Corporation did not have any prior experience with chutes in the tearing out process nor did it have all the equipment necessary to do this particular job.
Prior to the presence of the chute, workmen who removed the brick from the smaller chamber did so from the outside of the smaller well through openings in the well. With the advent of the chute, plaintiff-carpenters were now required to enter the well in order to clean out the brick. Another feature of the chute was the necessity of lowering the chute and removing lower sections of it as the brick removal progressed downward from the top of the larger chamber.
On the day of the fatal accident, brick had accumulated on the floor of the smaller well to a height where it reached the mouth of the chute and required a removal of the lower section of the chute so as to allow more checkerbricks to fall freely. It was during the process of removing this section of the chute that checkerbrick which had clogged in the upper regions of the chute loosened and fell on the two carpenters. The chute also collapsed and fell.
In considering a motion for judgment n.o.v. we must consider the evidence and all reasonable inferences that can be drawn from that evidence in the light most favorable to the verdict winner. Hargrove v. Frommeyer and Co., (et al.), 229 Pa.Super. 298, 323 A.2d 300 (1974). The plaintiffs are entitled to all oral evidence supporting the verdict considered and all the rest rejected. Sorrentino v.
The departure from the normal procedure of removing bricks in the two chambers of the stove by the introduction of the chute procedure set up an entirely new set of circumstances with which Gray Corporation was unfamiliar. Gray Corporation's unfamiliarity and inexpertise concerning the installation was buttressed by the fact that United States Steel had to come to its assistance and aid by supplying its own employees and rigging equipment in the process of installing the chute. Under these conditions United States Steel knew or should have known that Gray Corporation was not familiar with the chute operation, had no experience with regard to its safety or safe methods of operation and did not have all the necessary equipment which one more familiar in an operation of this kind would be expected to have.
Plaintiffs' complaints in the instant matter charge United States Steel with negligence in failing to protect the plaintiffs against injury. United States Steel's complaint against Gray Corporation, as additional defendant, alleged that Gray permitted an unreasonably dangerous condition to exist with respect to the work in which the plaintiffs were engaged and to allow them to do such work without adequate safeguards under unreasonably hazardous conditions. In fact, the trial proceeded in accordance with the theory set forth in United States Steel's complaint, that the chute method of disposing of bricks presented a dangerous condition for those working in the area.
Plaintiffs' complaints were identical and alleged, in effect, that plaintiffs' injuries were brought about by the negligence of United States Steel in failing to protect them against unreasonable risk of harm in the work performed by Gray Corporation, in failing to provide proper supervision to the work, in failing to warn plaintiffs of the dangerous conditions under which they worked, all of which protections the plaintiffs were entitled to and which United States Steel were obliged to furnish. Hargrove v. Frommeyer and Co.,
Thus these allegations of United States Steel's negligence as set forth in plaintiff's complaints suffice to support a cause of action based on negligence and if supported by the evidence at trial, taken in a light most favorable to plaintiffs, entitle plaintiffs to recover, whatever the legal theory on which liability might be based. Kopka v. Bell Telephone Co. of Pa., 371 Pa. 444, 91 A.2d 232 (1952); Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A.2d 817 (1949). In Kopka, supra, the case was tried on the theory of negligence and our Supreme Court upheld the verdict in favor of plaintiffs (damages were modified) on the principal of quare clausum fregit where the complaint alleged trespass on the land and the evidence in the trial supported that allegation.
The evidence in this case demonstrated that the working conditions under which plaintiffs worked were unreasonably dangerous. Here was an independent contractor, Gray Corporation, with no experience with the safety measures to be taken with regard to the use of a 80 to 90' high enclosed somewhat vertical chute in a blast furnace stove. Because of Gray Corporation's inexperience the chute was installed jointly by Gray Corporation and United States Steel, with United States Steel using its employees and rigging equipment in installing the chute. It was an operation which both Gray Corporation and United States Steel should have recognized as being fraught with danger of harm if special precautions were not taken. Furthermore, this condition, that is the construction of the chute and the necessity of having men work in the well, only became necessary because of the departure from the normal procedure of removing bricks. Under all the surrounding circumstances of the installation of the chute, both Gray Corporation and United States Steel knew or should have known that special precautions were necessary to be followed in order to protect workmen in the well and thus the responsibility
This case was tried primarily under the principles set forth in the Restatement of Torts Second, Sections 410 through 429, Sections 410, 413, 416 and 427 in particular.
Considering all the evidence in this case the jury could have found in favor of plaintiffs under any of the provisions of Sections 410, 413, 416 and 427. The lower court's charge under Section 410 was supported under plaintiff's theory that the departure from the normal procedure of brick removal gave rise to a peculiarly unreasonable risk of harm to others, a condition about which United States Steel knew or should have known, thus compelling an equal duty upon it for taking special precautions to protect others against physical harm.
The lower court's charge under Section 413 was supported by evidence which showed United States Steel failed to take the necessary special precautions where a peculiarly unreasonable risk of harm to others existed as it did in this case. The jury could reasonably have found that with the existence of a dangerous condition at plaintiff's work site United States Steel was under a duty to take special precautions such as making certain, by proper directions, that no workmen be permitted in the well until it was certain that the chute was clear of clogged brick. The fact that Gray failed in its duty does not excuse United States Steel from its own failure to see special precautions were taken.
United States Steel contends that it has no liability in this case because the contract contains an exculpatory
The cases which United States Steel cites are inapplicable because they treat of the principle holding the employer of an independent contractor liable or not liable on the issue of whether the employer had control of the work. Brletich v. United States Steel Corp., 445 Pa. 525, 285 A.2d 133 (1971). (The court found the employer had no control); Tropea v. Shell Oil Company, 307 F.2d 757 (2d Cir. 1962); the cleaning of fuel tanks which was not an inherently dangerous activity; Funari v. Valentino, 435 Pa. 363, 257 A.2d 259 (1969) (Employer had no control over a faulty torch tank hose); Texaco, Inc. v. Roscoe, 290 F.2d 389 (5th Cir. 1961) (Employer had no liability where it turned complete possession of work site over to employer and where employer retained no control over the work); Celender et al. v. All'y Co. Sanitary Authority, 208 Pa.Super. 390, 222 A.2d 461 (Allocatur refused). Employer had no control over operation of an underground vault where an explosion occurred.
This case has nothing to do with direct control of work by United States Steel. It is merely based on United States Steel's failure to take special precautions to protect plaintiffs against harm under work conditions which were dangerous and presented the likelihood of a peculiarly unreasonable risk of harm to plaintiffs.
However, exceptions to this general rule of non-liability are present in this case, both upon the negligence of United States Steel under Section 410 and upon the negligence of the independent contractor where work presents a condition of peculiarly unreasonable risk of harm to others as set forth in Section 413.
United States Steel's motion for n.o.v. is denied.
As to United States Steel's motion for a new trial we have an altogether different matter in considering the omissions of the court's charge on Section 413. Section 413 provides:
The court omitted in its instruction to the jury the provisions set forth in Section 413(a) and comment c to that Section which provides that the duty imposed upon United States Steel by Section 413 could be satisfied by:
SPAETH, J., files a dissenting opinion.
SPAETH, Judge, dissenting:
I believe that the lower court correctly decided that the exculpatory clause in appellant's contract with Gray did not satisfy the requirements of subsection (a), § 413 of the Restatement, and therefore that the subsection was properly not given to the jury.
Here, the exculpatory clause read:
This clause does not provide for special precautions in the situation in this case — the change in the usual tear-out procedure and the use of the chute — for two reasons. First (as the majority notes), the peculiar risk arose after the contract was drawn and signed. § 413 requires that in such a circumstance the employer take further action;
To give a charge on subsection (a) and to give the jury the exculpatory clause would have been to ask the jury to interpret the clause. In my view, this would have been clear error, for
Hewes v. McWilliams, 412 Pa. 270, 275, 194 A.2d 339, 342 (1963).
I would affirm.
The employer of an independent contractor is subject to the same liability for physical harm caused by an act or omission committed by the contractor pursuant to orders or directions negligently given by the employer, as though the act or omission were that of the employer himself."
"§ 413. Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor.
One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
(a) fails to provide in the contract that the contractor shall take such precautions, or
(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions."
"§ 416. Work Dangerous in Absence of Special Precautions.
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise."
"§ 427. Negligence as to Danger Inherent in the Work.
One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger."