Gerald STEINER, Appellant, v. BELL OF PENNSYLVANIA.
Superior Court of Pennsylvania.
June 10, 1993.
626 A.2d 584
Argued Dec. 1, 1992.
After a thorough review of the sentencing transcript in this case, we conclude that there was no abuse of discretion on the part of sentencing court and we dismiss this claim as meritless.
Accordingly, based on the foregoing, we affirm the judgment of sentence.
Judgment of Sentence Affirmed.
Before McEWEN, CIRILLO and BECK, JJ.
CIRILLO, Judge.
This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting Bell of Pennsylvania‘s (Bell) motion for judgment on the pleadings. Wе affirm.
In his complaint, Steiner alleged that his injuries were caused by Danella‘s negligence. Steiner furthеr alleged that “The work of Danella for Bell presented a peculiar risk of harm to to employees such as [Steiner] unless special precautions were taken in that the work of Danella includes employees working high off the ground on and about utility poles[,]” and that “Bell should have recognized that the work of Danella was likely to create a peculiar risk of physical harm to others including [Steiner] unless special precautions were taken.”
In its answer, Bell specifically dеnied that “the work of Danella for Bell presented a peculiar risk of harm to employees such as [Steiner].” Bell averred that “the work performed by [Steiner] did not involve any type of risk which could have been considered different from the usual and ordinary risk associated with the general type of work done.” Bell also specifically denied that it should have recognized that the work of Danella, absent special precautions, was “likely to create a peculiar risk of physical harm to others including [Steiner].” In new matter, Bell averred the following: that Steiner assumed the risk of any and all injuries; that Steiner‘s claim was barred or reduced in accordance with the Pennsylvania Comparative Negligence Act; that Steiner‘s injuries were caused by his own negligence; and that Steiner‘s claim was barred by the statute of limitations.
When reviewing a trial court‘s decision granting a motion for judgment on the pleadings, the appellate court‘s
The established law in Pennsylvania provides that an employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. Hader v. Coplay Cement Co, 410 Pa. 139, 150, 189 A.2d 271, 277 (1963); Ortiz v. Ra-El Development Corp., 365 Pa.Super. 48, 52, 528 A.2d 1355, 1357 (1987), alloc. denied, 517 Pa. 608, 536 A.2d 1332 (1987). See also Restatement (Second) of Torts, §§ 416, 427. One exception to this rule provides that an employer may be liable for the negligence of its employee/independent contractor where the work to be performed by the independent contractor involves a special danger or peculiar risk.3 In Ortiz, supra, Judge Beck aptly articulated the rationale underlying the exception to the general rule of nonliability:
[A]n employer of the indeрendent contractor ought to anticipate a heightened level of risk where the work is specially
dangerous or peculiarly risky. It is reasonable for the employer to take precautions or cause the independent contrаctor to take precautions to minimize the possibility of injury to others. After all, it is the employer who primarily benefits from the [independent] contractor‘s work and the employer who selects the independent contractor. Furthermore, the еmployer is in a position to make the selection of the independent contractor based on competency. The employer also may demand indemnity from the contractor. Finally, the employer, anticipating the risk, can purchase insurance to cover it.
Id. at 52, 528 A.2d at 1357-58. The Ortiz court provided a workable test to determine whether there exists a special danger or peculiar risk. A special danger or peculiar risk exists where: (1) the risk is foreseeable to the employer of the independent contractor, “i.e., a reasonable person, in the position of the employer, would foresee the risk and recognize the need to take special measures; and (2) the risk is different from the usual and ordinary risk associated with the general type of work done, i.e., the specific project or task chosen by the employer involves circumstances that are substantially out-of-the-ordinary.” Id. at 53, 528 A.2d at 1358.
Our review, as stated above, is limited to the pleadings. The pleadings here consist of a complaint, an answer, and new matter. Where, as here, the defendant is moving for judgment on the pleadings, the averments in its answer must be ignored and the factual allegations in the plaintiff‘s complaint must be taken as true. Evans v. Marks, 421 Pa. 146, 218 A.2d 802 (1966).
Accepting as true аll well pleaded facts in Steiner‘s complaint, we find that the trial court did not err in granting Bell‘s motion for judgment on the pleadings. Steiner has merely averred in his complaint that the doctrine of special danger or peculiar risk applies to create potential liability in Bell because the “the work of Danella includes employees working high off the ground and on and about utility poles.” Complaint, ¶ 5. Steiner has failed to allege any facts which
We conclude that Steiner has failed to aver the “material facts” on which the alleged cause of action against Bell is based. See
Order affirmed.
McEWEN, J., files a Dissenting Opinion.
McEWEN, Judge, dissenting.
Since the author of the majority Opinion embraces the benchmark principles establishеd in Ortiz v. Ra-El Development Corp., 365 Pa.Super. 48, 528 A.2d 1355 (1987), allo. denied Ortiz v. Ra-El Development Corp., 517 Pa. 608, 536 A.2d 1332 (1987), as pronounced by our colleague upon this
It has long been a general principle that the employer of an independent contractor is not liable for the physical harm caused to another by an act or omission of the contrаctor, in this case Danella Line Services. Restatement (Second) of Torts § 409. The Restatement provides in Sections 416 and 427 for exceptions to this general principle when the work poses a “peculiar risk” or a “special danger“. Both the general principle and the exceptions recited by the Restatement have become well-settled law in Pennsylvania, and our esteemed colleague, Judge Phyllis W. Beck, defined those exceptions in precise and certain terms when she declared for this Court that a “special danger” or “peculiar risk” exists where:
the risk is foreseeable to the employer of the independent contractor at the time the contract is executed, i.e., a reasonable pеrson, in the position of the employer, would foresee the risk and recognize the need to take special measures; and
the risk is different from the usual and ordinary risk associated with the general type of work done, i.e., the specific project or task chosen by the employer involves circumstances that are substantially out-of-the-ordinary.
Ortiz v. Ra-El Development Corp., supra at 53, 528 A.2d at 1358.
It is undisputed that appellant was an employee of Danella Line Services and that Bell contracted with Danella Line Services to perform line work. It was during the course of that employment that appellant asserts he “was caused to fall from a ladder while high up on a utility pole“. Appellant asserts in his complaint that the work was hazardous and dangerous and that Bell should have realized that the nature of the work created “a peculiar risk of physical harm“.
Simply put, appellant asserted in the complaint that the work he was called upon to perform involved a “peculiar risk”