Malanchuk, I. v. Sivchuk, I.
148 A.3d 860
| Pa. Super. Ct. | 2016Background
- Ihor Malanchuk, an independent contractor, fell from scaffolding at homeowner Ilya Sivchuk’s residence on May 2, 2008 and sustained serious injuries; scaffolding lacked required OSHA guardrail.
- Malanchuk settled a workers’ compensation claim against the insurer and Four Brothers Construction (Sivchuk’s company) but later sued Sivchuk and separately sued Alex and Tatyana Tsimura (who supervised Four Brothers’ jobs and allegedly acted through businesses "Impressive Windows").
- The two suits were consolidated for discovery and trial under Pa.R.C.P. 213(a); the trial court later granted summary judgment to the Tsimuras, dismissed product-liability claims against Sivchuk, and left negligence claims against Sivchuk intact.
- The Superior Court initially treated the grant of summary judgment to the Tsimuras as final for appeal; the matter proceeded through en banc consideration and then to the Pennsylvania Supreme Court, which held the Tsimura order was appealable and remanded for merits review.
- On remand, the Superior Court reversed the grant of summary judgment for the Tsimuras, holding that Malanchuk produced evidence raising genuine issues of material fact that: (1) Tsimura was in charge of the worksite/scaffolding (Restatement §384 theory); (2) Tsimura undertook a contractual supervisory duty to protect third parties (Restatement §324A theory); (3) Tsimura supplied/controlled the scaffolding for business purposes (Restatement §392 theory); and (4) as a co-contractor on the site, Tsimura owed a common-law duty to other subcontractors (McKenzie/§343 theory).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tsimura can be liable as the contractor in charge of erecting/controlling a dangerous structure (Restatement §384) | Malanchuk: Tsimura was the field supervisor who assigned work, instructed Malanchuk to assemble the scaffold, inspected it, and therefore was "in charge" of the structure | Tsimura: He was an independent contractor and did not control the job; Sivchuk retained control | Reversed summary judgment — evidence created a factual dispute that Tsimura was in charge and could be liable under §384 |
| Whether Tsimura assumed a duty to protect third parties by undertaking supervisory services (Restatement §324A / Farabaugh) | Malanchuk: Tsimura contracted to supervise worksites, received pay and OSHA training, and thus undertook a protective service and failed to exercise reasonable care | Tsimura: Control remained with Sivchuk; testimonial evidence supports no supervisory duty | Reversed — material facts supported a §324A duty and its breach, precluding summary judgment |
| Whether Tsimura supplied/controlled the scaffolding and therefore may be liable for supplying a dangerous chattel (Restatement §392) | Malanchuk: Even if not owner, Tsimura directed use/assembly and inspected the scaffold, exercising possession/control for business purposes | Tsimura: He did not own or supply the scaffold | Reversed — factual disputes existed whether Tsimura had possession/control as supplier under §392 |
| Whether co-contractor/subcontractor duty exists between independent contractors on the same site (McKenzie / §343) | Malanchuk: As site supervisor and OSHA-trained party, Tsimura knew or should have known of the hazard and had duty to protect other contractors/invitees | Tsimura: Denied control/responsibility; placed reliance on testimonial evidence that Sivchuk controlled site | Reversed — evidence supported a jury question whether Tsimura created/should have discovered the dangerous condition and owed duty to Malanchuk |
Key Cases Cited
- Malanchuk v. Tsimura, 137 A.3d 1283 (Pa. 2016) (consolidation under Rule 213(a) does not effect complete merger; order granting summary judgment was appealable as to separately identifiable action)
- Kincy v. Petro, 2 A.3d 490 (Pa. 2010) (Rule 213(a) consolidation preserves separate identities of actions absent complete overlap of parties and claims)
- Farabaugh v. Pennsylvania Turnpike Com'n, 911 A.2d 1264 (Pa. 2006) (construction manager who undertakes supervisory duties may owe third-party duty under Restatement §324A)
- Borough of Nanty–Glo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932) (testimonial affidavits/depositions alone ordinarily insufficient to support summary judgment; credibility is for the jury)
- Leonard v. Commonwealth, 771 A.2d 1238 (Pa. 2001) (discussing liability when one erects a structure on another’s land; application of Restatement §384)
- Duffy v. Fischbach & Moore, Inc., 126 A.2d 413 (Pa. 1956) (contractor/subcontractor liability principles)
- McKenzie v. Cost Brothers, Inc., 409 A.2d 362 (Pa. 1979) (subcontractors on the same construction site owe each other the duty of care due a business invitee)