*4 CAVANAUGH, WATKINS, Before CIRILLO and JJ. CIRILLO, Judge: *5 action, appellants Angelo Colloi personal injury
In this from a en- appeal judgment Colloi and his wife Caterina Court of Common Pleas County Philadelphia tered in the defendants/ap- in favor of court directed a verdict after the (PECO) Joseph and Company Electric Philadelphia pellees respect the with Scholl, (Scholl). judgment affirm Inc. We a trial with remand for new Scholl, reverse and to but to PECO. respect Septem- on this occurred leading to lawsuit
The incident running a PECO, to pursuant that date 1978. On ber Scholl, upon called Scholl with plumbing contract for work in sprinkler system leak the water underground an repair Streets at Ninth and Lombard at PECO’s substation subcontractor, Scholl, turn, upon called a Philadelphia. and Contractors, to the excavation work perform Herald Kull, foreman, George a dispatched leak. Herald repair the Colloi, laborer, Angelo to the substation appellant and a met on location Kull and Colloi were do the work. Koerper, McDevitt, a and Edward employee, Charles PECO Kull, Scholl, Koerper, and McDevitt of Inc. president vice lines, and then the water blueprints reviewed substation the water leak was showed the others where McDevitt They the substation. buildings comprising inside one of the outside, marked a on the Koerper spot and proceeded then was building of the where the excavation sidewalk front begin. breaking jackhammer the sidewalk with began up Colloi and McDevitt left site spot Koerper at the indicated. excavation, returned at various times to watch but feet of the five below progress Approximately work. sidewalk, pipe found a broken water surface Colloi repair In order to “saddled" in a concrete structure. partly around it at slip clamp had to a metal pipe, workmen the concrete so up the leak. Kull instructed Colloito break through the clamp applied. that the could be Colloi broke he struck an elec- jackhammer, whereupon concrete with a 13,200 volts. The re- carrying trical conduit a current severe includ- sulting injuries, shock caused Colloi to suffer ing second-degree burns over one-third of his body and *6 impotence, with concomitant traumatic neurosis.
Colloi, wife, joined by his sued the Philadelphia Electric for Company injuries, his and PECO in brought Scholl as an additional defendant. The case went to trial by jury. After plaintiffs the had presented case, their PECO introduced into evidence the contract Scholl, between itself and and with that the defendants rested and moved for a directed verdict. The court granted motion, the and it is from an en banc court’s refusal to disturb the directed verdict that the Collois appeal.1
In
appeal
an
verdict,
from a directed
the Appellate
Court must consider the evidence and all
infer-
reasonable
in
ences
the light most favorable to the appellant. Lit-
winko v.
267
Gray,
Pa.Super. 541,
(1979).
Lattanze v. 217, 302 Pa. Super. 220, 448 A.2d (1982). Bearing mind, these principles 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 law, matter of the trial court relied on the undisputed fact that Colloi’s employer, Contractors, Herald stood in the relationship independent contractor to PECO. The court applied the following rule pertaining independent contractors: Appellants 1. contend at the procedurally outset that it improper was for the court to direct a verdict for denying the defendants after the compulsory defendants' motions for nonsuit. This contention holds Ehler, no water. See (1950). Smith v. 366 Pa. the neces- possession An contractor independent the work under the by contemplated sary occupied area of the owner responsibility replaces his that contract and is, of the work during performance who control contractor, and over possession out without premises.... or the work independent to an he turns work over
... [W]hen know-how, selects his and who experience contractor with possessor and of land has equipment employees, own liability no further connection with work be done. 525, 531-32, Corp.,
Brletich v. United States Steel (1971). 285 A.2d Rationale for the Grossman, contractor doctrine stated in was Silveus v. *7 278, 362, 272, (1932): Pa. A. 364 161 phrase “independent implies The contractor” that very the contractor is in the manner of the independent doing work contracted for. How can the other control party the to engaged contractor who is do the work and who more it than the man presumably doing knows about who contract authorized him to do it? by Responsibility goes authority. with
However, contends that the appellant notwithstanding doctrine, independent duty contractor PECO had a this case independent to warn the contractor and its employees underground high-ten- existence and location its power sion line.
A
duty
unknowing
landowner owes a
to warn an
independent
existing dangerous
contractor of
conditions on
the
premises
landowner’s
where such conditions are known
or
to the
discoverable
owner. Grace v.
Disston &
Henry
Sons, Inc.,
265,
(1952);
369 Pa.
who delivers of portion of the land to an no contractor owes to the duty employees of the independent contractor respect with to an obviously on dangerous portion condition that the land in the possession the contractor.” Coplay Hader v. Cement Co., Manufacturing 139, 151, 271, 410 Pa. 189 A.2d (1963)(emphasis supplied). It has also been said that the of an employer independent contractor has no to duty warn or employees contractor his of a condition that at least as them obvious to as it is to him. Repyneck Tarantino, (1964). addition, 415 Pa. In property owner of is under no duty protect the employees of an independent contractor from risks arising from or connected intimately with defects or hazards which contractor has repair undertaken to or are created by which contracted. Celender v. Allegheny County Sani- job tary Authority, (1966) Super. A.2d 461 (allocator refused). sum,
In
whether the owner of premises owes to his
independent contractor a
duty
dangerous
warn of
condi
tions on the premises can be said to turn on whether the
owner, at the time he
contract,
enters the
possesses “superi
or knowledge,” Grace,
supra,
We believe the trial court erred in taking from the jury’s consideration the question whether an ex- PECO breached isting duty to warn its contractors or employees their existence and underground location of the power line. We persuaded are what was our Court in Densler v. by said Co., Metropolitan Edison 585, 590-91, 235 Pa. Super. 345 758, (1975): A.2d 761
Our courts long recognized have that the standard of imposed upon care a supplier of electric power, particular- ly power when that is supplied high at voltage, among is the highest recognized in the law of “A negligence. supplier of electric current ‘is not only bound to know
293
danger,
extent of the
but to use the very highest degree
of care practicable
injury
every
to avoid
to
one who may
wires,
in
lawfully
proximity
be
to its
and
liable
come
”
otherwise,
or
in
accidentally
contact with them.’ Brill
Co.,
307, 312,
hart v. Edison
Power
368 Pa.
Light &
44,
(1951),
A.2d
citing Fitzgerald v. Edison Electric
Co.,
540, 543,
Illuminating
(1901)
200 Pa.
[41 The “very
degree
highest
of care” incumbent
upon
supplier
includes,
of electric power
in appropriate circum-
stances,
duty
warn an
contractor of
non-obvious dangers inherent in
in
working
close proximity
with high-tension
Co.,
wires. See Mathis v. Lukens Steel
415 Pa.
(1964);
A.2d 482
see also Fuller v. Palaz-
zolo,
(1938).
Here undisputed it is that took no steps PECO whatsoev- er to warn the independent contractor or its employees of a highly dangerous condition existing place where the excavation was 13,200-volt to be done. PECO’s line inwas very close proximity to the pipe water to be repaired; fact, the concrete structure housing power line “sad- dled” up around the pipe to the extent two or three inches, 448, 452, N.T. at so that the cement had to be broken order to repair the pipe. Id. at 416. George Kull, Mr. Colloi’sforeman on the testified job, that he had never seen utility another, lines so running close to one id. 458; at he assumed that the concrete structure was a poured “thrust block” pipe around the in place. hold it 413-14, 430-32, 435, Id. at danger 452-54. The posed by 13,200-volt power line lurking within the concrete struc- ture suspected workers, was not by the as Mr. Kull testified *9 cause to “Q. you any And did have
on cross-examination: concrete through line that that there an electric believe was thought if I digging A. never been block? We would have 449. electric Id. at nearby.” there was owned, and PECO, operated, which part appellee For its substation, at the site blue- had available controlled the electrical lines emanat- charts, of the diagrams and prints, Although (Stipulation). Id. at from the substation. ing blueprints or plans scene reviewed on the employee a PECO at id. Koerper, Kull and system with sprinkler of the water reviewed, not id. were 26, 114, 129, 407, plans the electrical Furthermore, where Colloi’s 444-45, point at 456-57. at and the pipe water the broken excavation had revealed structure, Col- immediately and before concrete underlying was concrete, employee the PECO up to break began loi that warning any failed to make an but present as observer 39-40, at a line. Id. power housed the concrete structure to the exist- alerted no was Colloi Clearly, point 42-43. at ordered to he was place line in the where ence of a power at 130. dig. Id. tending relied on other evidence
The trial court contractor, duty it that was shpw electrical location of PECO, to ascertain the than rather the follow the court cited Specifically, lines at the site. job foreman, of Herald Contractors’ questioning line of ing George Kull: at request anyone any Did make
Q: Okay. you to the accident prior Company Electric Philadelphia under facilities were underground concerning what the block?
A: No. excavating? past that in the Had ever done
Q: you work, made you had ever line of During your gas company or the company of the electric request excavat- during you or before you facilities for locate ed?
A: Yes. On our call three in jobs, days all we advance
all area; utilities that have in the and they structures come and locate we start and mark everything. before Q: Okay. Why in you any requests didn’t make this
particular case? Well, A: it’s not do It’s my my place to it. our —not office’s responsibility you go to do this before on out job. the And I guess— since this was an emergency, well, in the first it place, apply wouldn’t here because is this inside the line and do all our property we work right and, know, the street and the of ways you So, very rarely private on property. that doesn’t in this apply case.
Q: You did realize that if you would have asked the
Philadelphia Electric someone would Company have you were; told where their facilities is that correct? IA: don’t know that. 5-6,
Trial ct. slip op. at
N.T.
quoting
at 429-30. This
testimony
conclusively
does not
establish that PECO had no
duty
affirmative
warn its business
of
invitees
the hazard-
ous condition created by
proximity
between
power
line and the water line. See
v.
Janowicz Crucible Steel Co.
America,
304,
(1969).
433 Pa.
of rule,
As a general questions negligence or ne glect of duty are for the if there is jury any credible evidence to support conclusion that reasonable the defend liable; is ant may and the court as a matter of on rule law questions such only when evidence clear and unmis takable. Co., v. Ashby Philadelphia Electric supra; Har grove Co., 298, 229 Frommeyer Super. & Pa. 323 A.2d (1974); Co., Ostrowski v. Door Sales Crawford Super. (1966). We believe case should have been submitted to the jury decide whether in the circumstances high degree PECO met the imposed care on handlers of high-voltage power, or electric fulfilled its duty to independent warn the contractor of non-obvious dangers premises. on the compare See and Magill v. Westinghouse (E.D.Pa. Corp., F.Supp. Electric (3rd grounds, on other
1971),
Appellants on the jury liability should to the theories proceeded have §§ (Second) Restatement of Torts set out which state:
§ Dangerous Special in Absence of Precau- 416. Work tions an contractor to do work employs
One who to create recognize likely should as employer which *11 a risk of harm to during progress peculiar physical its taken, to subject unless are is special precautions others by harm caused to them the failure liability physical for to exercise reasonable care to take such of the contractor provided has for precautions, though employer even in the contract or otherwise. precautions such § Danger Negligence Inherent in the 427. as to Work an contractor to do work employs independent One who employer to others which the involving special danger a to to inherent or normal knows or has reason know be to work, contemplates he or has reason to the or which contract, making subject contemplate when such others for harm caused to liability physical precautions contractor’s failure to take reasonable such against danger. sections are said to “non-dele-
The duties defined these be for the impose liability negligence vicarious gable”; they the con- upon employs contractor one who independent an involving heightened physical to do risks of tractor work Id., 15, 2, Topic Introductory third ch. parties. harm to Note at 394. 416 and 427 Supreme adopted Court has sections
Our
Philadelphia
Electric Co. v.
as the
Pennsylvania.
law
Julian,
Inc., 425 Pa.
see
217,
(1967);
James
We hold that evidence sufficient to was make prima out a facie case under sections against PECO 416 and unarguable 427 of Restatement. We think it that PECO an do employed independent contractor “to work which the should employer recognized[d] likely as [have] create its during progress peculiar physical a risk of harm unless special taken,” to others precautions [were] § added), 416 (emphasis and to do “work involving spe cial others danger to which the or employer knfew] ha[d] work, reason to know to be or inherent normal to the or contemplate[d] which he or contem reason to ha[d] § plate contract,” added). making (emphasis when We also note that there was or ample evidence that either case, both of the contractors in this employed Scholl, Joseph Contractors, Inc., Inc. and Herald failed to *12 take special or reasonable seem precautions which would to have required by been the work in. The they engaged were contractors’ agents were that exca fully they aware were vating substation, beneath an electrical yet any neither took steps to whether power ascertain there were the lines area to be excavated. The elements of a case under sec tions 416 and 427 of the Restatement were thus made out.
Therefore, the for reasons stated this the case opinion, must be for a remanded new trial on liability.2 PECO’s Appellant liability against offers additional theories of 2. PECObased (Second) (Negligent on the Restatement § Torts 323 Performance Services) Undertaking (Abnormally Render §§ and 519-20 Dan- Activities). gerous argument At the appellees’ time of oral on motions verdict, presented for directed these were not theories trial court, any they presented nor is there were indication court en defendant, Scholl, Inc., Joseph we
As for the additional its from common law immunity it has demonstrated believe defense statutory employer of a meritorious by suit virtue Act. Act Compensation Workmen’s Pennsylvania under the §§ amended, as 1-1603. 2, 1915, P.L. P.S. of June under employee of an to an liability employer The Act is exclusive of all other Compensation the Workmen’s § The of a employer remedies. 481. subcontractor P.S. employees, employer statute the subcontractor’s by § id. forth in 52: in the circumstances set premises An permits entry upon who employer his control of a or an or under laborer occupied by'him contractor, or for the by employe assistant hired an part employ- of a performance upon premises such entrusted to such or con- regular employe er’s business or assistant in the tractor, shall be liable to such laborer extent to his manner and to the same as own same employe. Compensa- Barbieri, Pennsylvania
See also
Workmen’s
§ 4.09(3) (1975).
Disease
Mc-
In
Occupational
tion &
Co.,
Appellants (1), (3), (5) status, statutory employer and for but criteria (2) (4) in this contend that criteria and were not established case. *13 Sbarbaro, Accordingly Morgan we will not address them. v.
banc.
308,
(1982).
Super.
307 Pa.
(1978).
As for
(4),
criterion
appellants’ argument
that the
work entrusted to Herald Contractors was not
of
part
Scholl’s “regular business” is
worthy
little comment.
The contract
PECO,
between Scholl and
see Pape
Smith,
v.
supra, as well as the uncontradicted
testimony
George
Kull,
401-02, 408,
N.T. at
proved beyond peradventure that
the repair work being done at the substation
part
was
“regular
Scholl’s
business.” See
Sgattone Mulholland
Gotwals, Inc.,
&
(1927);
With the judgment affirmed; entered on the directed respect verdict with PECO, appellee judgment the is reversed and the case remanded for a new trial. Jurisdiction not retained.
CAVANAUGH, J., concurring opinion. files a CAVANAUGH, Judge, concurring: I in the concur result reached in the majority, but write to a I express single disagreement. agree with the majority PECO, that as a supplier high voltage of electrical power, had a duty (Scholl) warn the contractor and its of the location of the employees underground high line, power tension and therefore was not insulated from as a matter of liability law. Densler v. Metropolitan Co., (1975). 235 Pa.Super. Edison How- ever, I depart from the in its majority proposal appel- that against lant’s case placed PECO should have been before on in jury explained (Second) the theories Restatement §§ Torts 416 and 427. These are sections set forth (Second) Topic Restatement under Harm by Neg- Caused A ligence Carefully Independent Selected Contractor. The Note to Introductory Topic states: §§ 416-429,
The rules stated in the following unlike §§ 410-415, those stated in preceding do not rest upon personal of the any negligence employer. They are rules of liability, making vicarious the employer liable for negligence contractor, of the independent irrespective employer of whether the has himself at They been fault. which, arise situations for reasons policy, employer permitted is not to shift the responsibility for the proper conduct of the to the work contractor. The liability imposed is closely analogous that of a master negligence for the of his servant.
The case at bar is not a case of vicarious which liability, Scholl; would cause PECO to be for negligence liable instead, as the majority acknowledges opinion, in its PECO itself found for may be liable its failure to or warn Scholl its employees highly dangerous condition of job potential situs. Such liability is and liability, PECO’s would not have been activated by any negligence of Scholl. More- §§ over, I believe that 416 and 427 were intended to provide a basis for recovery by (“others”), third persons not for *15 employees of independent contractors or sub-contractors. The policy reasons do not extend to such employees.
As for the liability defendant, Scholl, additional we agree with the majority that Scholl is immune from an action at common law because Scholl appellant’s was statu- tory employer.
Argued April 5, 1984. July
Filed 1984. Petition for Appeal Allowance of Granted Jan. 1985.