The incident leading to this lawsuit occurred on September 11, 1978. On that date PECO, pursuant to a running contract for plumbing work with Scholl, called upon Scholl to repair an underground leak in the water sprinkler system at PECO's substation at Ninth and Lombard Streets in Philadelphia. Scholl, in turn, called upon a subcontractor, Herald Contractors, to perform the excavation work and repair the leak. Herald dispatched a foreman, George Kull, and a laborer, appellant Angelo Colloi, to the substation to do the work. Kull and Colloi were met on location by Charles McDevitt, a PECO employee, and Edward Koerper, vice president of Scholl, Inc. Kull, Koerper, and McDevitt reviewed blueprints of the substation water lines, and then McDevitt showed the others where the water leak was inside one of the buildings comprising the substation. They then proceeded outside, and Koerper marked a spot on the sidewalk in front of the building where the excavation was to begin.
Colloi began breaking up the sidewalk with a jackhammer at the spot indicated. Koerper and McDevitt left the site of the excavation, but returned at various times to watch the progress of the work. Approximately five feet below the surface of the sidewalk, Colloi found a broken water pipe partly "saddled" in a concrete structure. In order to repair the pipe, the workmen had to slip a metal clamp around it at the leak. Kull instructed Colloi to break up the concrete so that the clamp could be applied. Colloi broke through the concrete with a jackhammer, whereupon he struck an electrical conduit carrying a current of 13,200 volts. The resulting shock caused Colloi to suffer severe injuries, including
Colloi, joined by his wife, sued the Philadelphia Electric Company for his injuries, and PECO brought in Scholl as an additional defendant. The case went to trial by jury. After the plaintiffs had presented their case, PECO introduced into evidence the contract between itself and Scholl, and with that the defendants rested and moved for a directed verdict. The court granted the motion, and it is from an en banc court's refusal to disturb the directed verdict that the Collois appeal.
Bearing these principles in mind, we turn to appellants' contentions that the evidence was sufficient to go to the jury on several theories of liability. We first address appellants' case against appellee PECO.
In holding PECO non-liable as a matter of law, the trial court relied on the undisputed fact that Colloi's employer, Herald Contractors, stood in the relationship of independent contractor to PECO. The court applied the following rule pertaining to independent contractors:
Brletich v. United States Steel Corp., 445 Pa. 525, 531-32, 285 A.2d 133, 136 (1971). Rationale for the independent contractor doctrine was stated in Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362, 364 (1932):
However, appellant contends that notwithstanding the independent contractor doctrine, PECO had a duty in this case to warn the independent contractor and its employees of the existence and location of its underground high-tension power line.
A landowner owes a duty to warn an unknowing independent contractor of existing dangerous conditions on the landowner's premises where such conditions are known or discoverable to the owner. Grace v. Henry Disston & Sons, Inc., 369 Pa. 265, 85 A.2d 118 (1952); Restatement (Second) of Torts § 343 (1965); see also Skalos v. Higgins, 303 Pa.Super. 107, 449 A.2d 601 (1982). Such a duty to warn is owed irrespective of whether the independent contractor exercises full control over the work and premises entrusted to him. Crane v. I.T.E. Circuit Breaker Co., 443 Pa. 442, 278 A.2d 362 (1971). However, "An owner of land
In sum, whether the owner of premises owes to his independent contractor a duty to warn of dangerous conditions on the premises can be said to turn on whether the owner, at the time he enters the contract, possesses "superior knowledge," Grace, supra, 369 Pa. at 272, 85 A.2d at 121, or information which places him in a superior position to appreciate the risk posed to the contractor or his employees by the dangerous conditions.
We believe the trial court erred in taking from the jury's consideration the question whether PECO breached an existing duty to warn its contractors or their employees of the existence and location of the underground power line. We are persuaded by what was said by our Court in Densler v. Metropolitan Edison Co., 235 Pa.Super. 585, 590-91, 345 A.2d 758, 761 (1975):
See also Ashby v. Philadelphia Electric Co., 328 Pa. 474, 195 A. 887 (1938).
The "very highest degree of care" incumbent upon a supplier of electric power includes, in appropriate circumstances, the duty to warn an independent contractor of non-obvious dangers inherent in working in close proximity with high-tension wires. See Mathis v. Lukens Steel Co., 415 Pa. 262, 203 A.2d 482 (1964); see also Fuller v. Palazzolo, 329 Pa. 93, 197 A. 225 (1938).
Here it is undisputed that PECO took no steps whatsoever to warn the independent contractor or its employees of a highly dangerous condition existing in the place where the excavation was to be done. PECO's 13,200-volt line was in very close proximity to the water pipe to be repaired; in fact, the concrete structure housing the power line "saddled" up around the pipe to the extent of two or three inches, N.T. at 448, 452, so that the cement had to be broken in order to repair the pipe. Id. at 42, 416. George Kull, Mr. Colloi's foreman on the job, testified that he had never seen utility lines running so close to one another, id. at 458; he assumed that the concrete structure was a "thrust block" poured around the pipe to hold it in place. Id. at 413-14, 430-32, 435, 452-54. The danger posed by the 13,200-volt power line lurking within the concrete structure was not suspected by the workers, as Mr. Kull testified
For its part appellee PECO, which owned, operated, and controlled the substation, had available at the site blueprints, charts, and diagrams of the electrical lines emanating from the substation. Id. at 10 (Stipulation). Although a PECO employee on the scene reviewed plans or blueprints of the water sprinkler system with Kull and Koerper, id. at 26, 114, 129, 407, the electrical plans were not reviewed, id. at 444-45, 456-57. Furthermore, at the point where Colloi's excavation had revealed the broken water pipe and the underlying concrete structure, and immediately before Colloi began to break up the concrete, the PECO employee was present as an observer but failed to make any warning that the concrete structure housed a power line. Id. at 39-40, 42-43. Clearly, at no point was Colloi alerted to the existence of a power line in the place where he was ordered to dig. Id. at 130.
The trial court relied on other evidence tending to show that it was the duty of the independent contractor, rather than PECO, to ascertain the location of electrical lines at the job site. Specifically, the court cited the following line of questioning of Herald Contractors' foreman, George Kull:
Trial ct. slip op. at 5-6, quoting N.T. at 429-30. This testimony does not conclusively establish that PECO had no affirmative duty to warn its business invitees of the hazardous condition created by the proximity between the power line and the water line. See Janowicz v. Crucible Steel Co. of America, 433 Pa. 304, 249 A.2d 773 (1969).
As a general rule, questions of negligence or neglect of duty are for the jury if there is any credible evidence to support a reasonable conclusion that the defendant is liable; and the court may rule as a matter of law on such questions only when the evidence is clear and unmistakable. Ashby v. Philadelphia Electric Co., supra; Hargrove v. Frommeyer & Co., 229 Pa.Super. 298, 323 A.2d 300 (1974); Ostrowski v. Crawford Door Sales Co., 207 Pa.Super. 424, 217 A.2d 758 (1966). We believe the case should have been submitted to the jury to decide whether in the circumstances PECO met the high degree of care imposed on handlers of high-voltage electric power, or fulfilled its duty to warn the independent contractor of non-obvious dangers on the premises. See and compare Magill v. Westinghouse Electric Corp., 327 F.Supp. 1097 (E.D.Pa.
Appellants also contend that their case against PECO should have proceeded to the jury on the theories of liability set out in the Restatement (Second) of Torts §§ 416, 427, which state:
The duties defined in these sections are said to be "non-delegable"; they impose vicarious liability for the negligence of an independent contractor upon one who employs the contractor to do work involving heightened risks of physical harm to third parties. Id., ch. 15, Topic 2, Introductory Note at 394.
Our Supreme Court has adopted sections 416 and 427 as the law of Pennsylvania. Philadelphia Electric Co. v. James Julian, Inc., 425 Pa. 217, 228 A.2d 669 (1967); see also Gilbert v. Korvette's, Inc., 457 Pa. 602, 611-12 n.25, 327 A.2d 94, 100 n.25 (1974); McDonough v. United States Steel Corp., 228 Pa.Super. 268, 324 A.2d 542 (1974); Toole
We hold that appellants' evidence was sufficient to make out a prima facie case against PECO under sections 416 and 427 of the Restatement. We think it unarguable that PECO employed an independent contractor "to do work which the employer should [have] recognized[d] as likely to create during its progress a peculiar risk of physical harm to others unless special precautions [were] taken," § 416 (emphasis added), and to do "work involving a special danger to others which the employer kn[ew] or ha[d] reason to know to be inherent in or normal to the work, or which he contemplate[d] or ha[d] reason to contemplate when making the contract," § 427 (emphasis added). We also note that there was ample evidence that either or both of the independent contractors employed in this case, Joseph Scholl, Inc. and Herald Contractors, Inc., failed to take special or reasonable precautions which would seem to have been required by the work they were engaged in. The contractors' agents were fully aware that they were excavating beneath an electrical substation, yet neither took any steps to ascertain whether there were power lines in the area to be excavated. The elements of a case under sections 416 and 427 of the Restatement were thus made out.
Therefore, for the reasons stated in this opinion, the case must be remanded for a new trial on PECO's liability.
The liability of an employer to an employee under the Workmen's Compensation Act is exclusive of all other remedies. P.S. § 481. The employer of a subcontractor is by statute the employer of the subcontractor's employees, in the circumstances set forth in id. § 52:
See also 1 Barbieri, Pennsylvania Workmen's Compensation & Occupational Disease § 4.09(3) (1975). In McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930), our Supreme Court set out five elements which must be proven to establish statutory employer status under the section of the Act just quoted. These elements are:
Id., 302 Pa. at 295, 153 A. at 426.
Appellants concede that appellee Joseph Scholl, Inc. met criteria (1), (3), and (5) for statutory employer status, but contend that criteria (2) and (4) were not established in this case.
As for criterion (4), appellants' argument that the work entrusted to Herald Contractors was not part of Scholl's "regular business" is worthy of little comment. The contract between Scholl and PECO, see Pape v. Smith, supra, as well as the uncontradicted testimony of George Kull, N.T. at 401-02, 408, proved beyond peradventure that the repair work being done at the substation was part of Scholl's "regular business." See Sgattone v. Mulholland & Gotwals, Inc., 290 Pa. 341, 138 A. 855 (1927); Wiltrout v. Circle Mobile Home Sales, Inc., 293 Pa.Super. 131, 437 A.2d 1240 (1981) (allocatur refused Apr. 2, 1982); Cranshaw
With respect to appellee Joseph Scholl, Inc., the judgment entered on the directed verdict is affirmed; with respect to appellee PECO, the judgment is reversed and the case remanded for a new trial. Jurisdiction not retained.
CAVANAUGH, J., files a concurring opinion.
CAVANAUGH, Judge, concurring:
I concur in the result reached in the majority, but write to express a single disagreement. I agree with the majority that PECO, as a supplier of high voltage electrical power, had a duty to warn the independent contractor (Scholl) and its employees of the location of the underground high tension power line, and therefore was not insulated from liability as a matter of law. Densler v. Metropolitan Edison Co., 235 Pa.Super. 585, 345 A.2d 758 (1975). However, I depart from the majority in its proposal that appellant's case against PECO should have been placed before a jury on the theories explained in Restatement (Second) Torts §§ 416 and 427. These sections are set forth in the Restatement (Second) under Topic 2, Harm Caused by Negligence of A Carefully Selected Independent Contractor. The Introductory Note to Topic 2 states:
As for the liability of the additional defendant, Scholl, we agree with the majority that Scholl is immune from an action at common law because Scholl was appellant's statutory employer.