*1
NORALCO Superior Pennsylvania. Court of
Argued Nov. 1979. Filed 1980. Oct. Appeal Petition for Allowance of Denied March 1981. *2 Irvin, Jr., W. Arch for Pittsburgh, appellant. Klaber, Pittsburgh, appellee.
Richard D. CERCONE, PRICE, Before President Judge, SPAETH, HESTER, CAVANAUGH, MONTGOMERY HOFFMAN, JJ.
HOFFMAN, Judge: that the lower court contends erred in conclud- Appellant ing that the contract indemni- parties’ required appellant to appellee for a loss fy resulting appellee’s negligence. and, We disagree accordingly, affirm the entry judgment n. o. v. in appellee. favor of
Appellee, Redevelopment Authority Pittsburgh Urban (URA), land in the East owns a tract of section of Liberty Pittsburgh. Appellant, Corporation (Noralco), Noralco engaged in demolition work. In the URA and Noralco entered Noralco whereby agreed into a contract to perform demolition and work at the site clearance East site. Liberty The contract stated that the URA assumed no responsibility *3 for the condition of and other existing buildings structures. Noralco, alia, obligated the contract inter to Additionally, the inspect to itself with the premises acquaint existing conditions; to technical la- provide supervision, personnel, bor, materials; and to ask the URA for additional any information which be needed in and might planning per- work; forming the and to demolish structures in such a manner as to avoid hazards to and The persons property. contract further that Noralco “shall exercise provided proper precautions persons property and and shall be'responsible for all to either on or damages persons property, off the site, which occur as a result of fault or negligence [its] connection with the of the work.” Another prosecution contract to save provision required Noralco and “indemnify harmless the from claims for any damages resulting [URA] from personal and/or death suffered or injury alleged have been as a any person suffered result of work by conducted under this contract.”
On Noralco’s were tear- August employees while site, ing down a brick wall and fell collapsed wall at one of The resulting in his death. employees, the URA against an action brought estate decedent’s $172,300.00. The URA in the amount damages recovered Noralco.1 against action indemnity then instituted this had the URA although that trial established evidence at compliance site to enforce Liberty the East inspectors possession control and contract, Noralco had sole with Additionally, of the accident. at the time premises believed employees Noralco evidence revealed that the time of down at tearing were they brick wall which adjoining of an in” the wall “tied the accident was however, were Conse- fact, separate. the walls In building. from the bricks removing were employees while the quently, accident, Noralco After the wall, it collapsed. unsupported adjoining roof of the tower on the elevator plans found not connect- walls were the two showed that building which however, the URA nor accident, neither ed. Before the walls were or that existed plans Noralco knew that these the URA jury court instructed separate. The trial to their pursuant Noralco entitled indemnified was to be if from active if was free contract the URA of the employ- the death which caused Noralco did anything of Noralco. in favor a verdict ee. The returned jury URA, lower court v. for the n. o. granting judgment the URA no evidence that there was concluded that required contract parties’ actively negligent damages resulting Noralco to the URA indemnify negligence. passive the URA’s injuries caused personal This followed.2 appeal requires contract of whether an
The question the latter’s own against an owner contractor *4 recovery common sought theories: 1. on two alternative The URA indemnity. has not chal- URA law and contractual lenged jury’s finding not entitled to propriety it was the indemnity. common law Court, opinion, URA panel unpublished held that the A in 2. of this an require actively negligent Noralco the contract did not and that indemnify case. Accord- of this under the circumstances the URA jury judgment ver- ingly, panel and reinstated reversed reargu- petition subsequently granted for URA’s dict. Our Court ment. 470
negligence was first considered
our
Supreme Court
in
Perry v.
252,
Payne,
217 Pa.
We
not
injuries should
against personal
of indemnity
contract
the
of the
indemnify against
be construed to
indemnitee,
unequivocal
so
in
terms.
expressed
it is
unless
hazardous,
is so
the
liability
indemnity
on such
and extraordinary,
so unusual
the
character
the
indemnitor
presumption
there
no
can be
unless the contract
responsibility
to
the
intended
assume
inference
express stipulation.
it
No
doubt
puts
beyond
can establish it. The mani-
import
from words
general
cases,
the
indemnify against
injury
fest
to
purpose, in such
which,
circumstances,
ap-
could
be
reasonably
under the
indemnitor,
his
the
or
prehended
from
action
only
servant,
is a
in
indemni-
construing
consideration
weighty
surrounding
contracts.
ty
parties,
The circumstances
erected,
one,
building
the owner for whom the
to be
other,
and the
who is to construct
the contractor
injuries
acts
to
building
persons
hence
whose
would seem
property
anticipated,
be
to make
may
irresistible,
expressly stipulated
conclusion
that unless
the contract
his
against
owner is not to be indemnified
own
not
negligence.
parties
In the case at hand
have
in-
expressly
occasioned
stipulated against
injury
satisfied,
demnitee’s
from the
negligence,
own
and we are
terms
instrument
read in
of the circumstances
light
as
the manifest
surrounding
purpose
well as
bond,
intend
inducing
they
protect
did not
to
indemnitee
his own or his servant’s negligence.
against
Id.
In case, the instant Noralco contends that because the indemnification provision herein is similar to those in Perry Co., Pittsburgh Steel it was not required to jury 4. The found also that the contractor and subcontractor were negligent failing employ safety precautions in which had been agreed upon, negligent failing that the owner was in to enforce safety provisions. those rule announced responds the URA. URA was not where the indemnitee does not Perry apply of the accident time possession premises determining whether was negligent. only passively case, wheth- first consider this we shall applies rule Perry negligent. actively passively er the URA Young, Trust Pa. In Potter Title and Co. Court stated: (1951), Supreme
A.2d 76
our
denotes
negligence”
the term
Generally speaking,
“passive
defects,
pitfalls
obstacles or
negligence
permits
which
words,
which
negligence
in other
exist
premises,
condition
dangers arising
physical
causes
hand, is
the other
land itself.
on
negligence”,
“Active
with activities conduct-
in connection
negligence occurring
as,
on the
premises,
example,
ed
*7
whereby
of
vehicles
moving
operation machinery
injured.
the
is
premises
person lawfully
v. R.
Id.,
242-43,
also Kopp
Although gave the lower court does verdict for Noralco negligence, general tive the jury’s the to be not reveal or not the found URA jury whether court, how We the lower negligent.5 agree with actively ever, actively there no the URA was was evidence that in which was of the the URA negligent. transcript trial found to have the death of Noralco’s caused negligently Thus, at in this case. not introduced the trial the from which determining whether there was evidence we actively negligent, could the URA was jury conclude that At in this case. can consider evidence introduced only did accident, the time of the no of the URA agent wall. collapse of the affirmative act which contributed to most, court, negligence, by As noted lower the URA’s dan of a employees consisted of to warn Noralco’s failing owner, URA, which the as gerous premises condition on the jury neither Noralco was 5. The URA found that concedes actively passively negligent. nor See, e. Grace v. should have discovered. g., Henry Disston & Sons, Inc., 369 Pa. 85 A.2d 119 (1952) (duty of owner of building employees independent contractor). passive. Such no more than clearly
In Perry arguing rule announced in does not apply where the indemnitee was passively negligent and not in possession of premises accident, at the time URA misapprehends Perry of that rule. scope Under and its intent to have their progeny, parties’ contract apply to a loss caused the indemnitee's own negligence must be in clear and expressed unequivocal lan rule, however, guage. this applying courts do not examine only the four corners of the contract to determine whether it losses specifies caused the indemnitee’s neglig If the contractual is not the court language explicit, ence.6 will consider the surrounding parties’ circumstances See e. Brotherton object into the g., entering contract. Construction Patterson-Emerson-Comstock, Co. v.
Pa.
475
the owners’ active
resulting from
the owners from losses
Warehouses, Inc. v. Whitak
Field
negligence.
In Tidewater
that
Co.,
the fact
our
Court considered
supra,
Supreme
er
of the
possession
control and
complete
the indemnitor had
concluding
of the accident
in
at the time
premises
which was
provision,
did
intend the
indemnity
not
Co., to protect
Steel
Perry
Pittsburgh
similar to those in
indemnitee’s
from the
resulting
the indemnitee from losses
have viewed as a
jurisdictions
in other
negligence. Courts
intent
determining
parties’
relevant
in
circumstance
See, e.
passive.
fact
was
negligence
the indemnitee’s
1966)
Hart,
(5th
v.
F.2d 657
Cir.
American Oil Co.
g.,
Machine Co. v. Hatzel &
law);
Florida
(applying
Harvey
Buehler,
924, 6
Cal.Rptr.
54 Cal.2d
353 P.2d
(1960); Bartlett v. Davis
219 Kan.
entered into a convert the owners’ into contract shall garage. contract stated that Contractors] “[t]he which occur to may bear all loss or damage accidents person prosecution or or on account of the persons, by work, While possession until taken owner[s].” contract, an the contractors performing him. In an action injured ceiling when fell part found to instituted the owners had been employee, had actual or constructive negligent have been because they ceiling. settling employ- notice of a defect After claim, pursuant ee’s sought the owners indemnification their contract. The New Court noted that Jersey Superior contract, have in construing generally courts of whether the contrac- given great weight to the question instrumentality tor had exclusive possession place stated that the accident. the Court producing Additionally, recovery every courts have acknowledged deny contributed any way case in which the owner’s no circumstance in which practically to the loss would leave *9 would indemnity provision operate. In holding that circumstances in surrounding this case that showed indemnity contract was intended to the owners passive their negligence, Court stated:
The owners
nothing
had
to do with the actual
process
the work of alteration
under
the contract....
[T]he
contract contemplated that
the contractors were to com-
familiarize
pletely
themselves with the building before
doing the work.
It was further
therein
provided
that they
were to do the
in
job
entirety,
including “all minor details
necessary.”
providing
agreement
the con-
tractors were to “bear all loss or
from accidents
damage
which may occur to any person
persons,
or on
by
account of the prosecution of the work until possession is
owner,”
taken by the
must be
parties
taken to have in
mind what
experience
litigation
this field teach
would be
claim,
the most
occasion for
likely
such a
accident
to an
of the contractors
employee
during the
Moreover,
work.
since
Workmen’s
Act
Compensation
... would preclude a common law action
such an
employee against
contractors,
an action of the kind
here brought
against
owners
was one
employee
of the contingencies
to have been
clearly
contemplated by
the parties drawing
agreement. We deem it to
have
been the intent of
plainly
the absent
owner should be
relieved of
entirely
concern over a
any
claim
accident,
out of
arising
such
no matter whose fault
was,
it
so
as it
long
arose out of the
of the work.
doing
Presumably the contractors were willing to take their
chances with respect
defective
condition of the
structure,
either
advance
relying
inspection
pre-
cautions in
the work or
doing
availability
insurance
to cover the risk.
N.J.Super. at
however, if the had injured been as a result of the active negligence owners, of an agent it would have held the indemnity provision inapplicable because loss *10 the contemplation was not within contingency from such a the parties. of Buehler, Inc., supra, v. Hatzel Machine Co. & Harvey deci- distinguished prior
the of California Supreme Court did indemnity provision sion which had held that a general resulting from the not the owner for a loss indemnify follows: negligence owner’s as to maintain indepen-
Here the indemnitee did not continue whereon construction was operations dent on the premises from some con- The did not result progress. injuries indemnitors’ perform- duct or omission unrelated to the all, breach of duty ance. Most of the claimed significantly active, affirmative mis- on the indemnitee’s was not part conduct, failure to act in negligence-a but at most passive fulfillment of a of care which duty devolved indemnitee as the owner or of land. occupier Finally, matter over which the misconduct does not relate to some indemnitee exercised exclusive control. at 353 P.2d at at 286-87. Cal.Rptr. Cal.2d See Kan. at Corp., supra,
also Bartlett Davis
547 P.2d
(“Where
at 808
the indemnitor has
and control of
possession
not
the work or
and the owner does
maintain
premises
on the
a contract of indem-
independent operations
premises,
of
nity
negligence
construed to cover
generally
passive
Annot.,
Judgment affirmed.
SPAETH, J., files a concurring opinion.
MONTGOMERY, J., concurs in the result.
appeal
7.
challenged
On this
Noralco has not
the lower court’s state-
opinion
ment in its
agreement
that Noralco received fair consideration for its
indemnify
supra
accompany-
the URA. See note 3
and
ing
Compare
Hart,
(5th
text.
American Oil Co. v.
I “passive” negli- to “active” and reference majority’s has been of the terms for several reasons: Use gence issues discredited, and are in case irrelevant they not make plain on this does appeal; majority raised terms; case is better this finally, what it means decided without resort to them.
-1- cases where the Offhand, of three lines of one can think to distin- been employed terms “active” and have “passive” None of these between guish negligent conduct. types lines, here. however, use of the terms supports are
First,
frequently
the terms “active” and “passive”
the issue of whether an actor
addressing
found in older cases
conduct
negligent
of his
consequences
is relieved from the
Bell,
See,
g.,
e.
Cotter
417 Pa.
superseding cause.
Laundry
DeLuca v. Manchester
(1965);
Second, as
the terms “active”
majority
older cases to define
“passive”
are used in several
a “gratuitous
of land to
owed
duty
possessor
See,
Young,
Potter Title & Trust Co.
367
g.,
e.
licensee.”
However,
239, 242-43,
has
duty
Pa.
See Restatement (Second) of Torts (1965) (distin- 333-350 §§ guishing between the of a duty possessor of land towards others for arising dangerous risks from conditions on the land and the owed for duty risks arising dangerous activities the land).1 conducted on
Third, the terms “active” and “passive” sometimes appear
in cases
See,
common law
e.
Bur-
involving
g.,
indemnity.
bage
Co., Inc.,
v. Boiler Eng. & Supp.
319, 326-27,
Eazor Express, Inc. v.
A.2d
(1969);
Barkley,
Pa.
If one overlooks the fact that the use of the terms “active” and has “passive” negligence been discredited in discussions of superseding cause and the duty owed aby possessor of land, and if one assumes that the use of the terms retains some validity cases involving common law but see Restatement indemnity, (Second) 886B, of Torts § still, Comment C (1979), we should not resort to them here. Since the Redevelopment Authority does not contest that its negligent conduct was a substantial factor causing death, workman’s no question superseding cause exists. In addition, Noralco’s workman was not a gratuitous licen- see. Finally, this appeal does not involve common law See footnote indemnity. of the Majority opinion. The Redevelopment does not Authority challenge the find- jury’s ing that Nor aleo was innocent of negligent conduct contributed to the death of its workman. See Authori- ty’s Brief at Further, 10. it was established at a trial prior the Authority was guilty negligent conduct caused the death, workman’s and the has not Authority attempted to refute these facts in the present proceedings. Since the Authority’s negligent conduct was the sole legal cause of death, workman’s its liability was necessarily primary, not secondary, principles common law indemnity are therefore irrelevant.
1. The “gratuitous Restatement has also abandoned the term licen- (Second) see.” Restatement of Torts 331. §
-2- By failing recognize to the various definitions that have given been “passive” terms “active” and in the several of above, lines cases mentioned leaves one majority uncertain regarding what it means the terms. first cites Potter Title & Trust v. Young, Co. majority
supra, proposition
“passive”
negligence
“neg-
ligence
defects,
which permits
obstacles or pitfalls to exist
words,
premises,
other
which
causes
dangers arising from
of
physical condition
the land
326-327,
itself.”
at
Majority op.
433 Pa.
tive negligence” as the synonym of “primary negligence.” See Annot., A.L.R.3d §§
Indeed, section the Annotation clearly distinguishes “passive in the negligence” sense of “secondary negligence” from a landowner’s negligent failure to a provide place safe to work for the of an employees independent contractor:
In some cases a involving agreement contractor’s the owner with respect injuries occurring in or prosecution work, course aor similar contrac- provision, tual courts, without characterizing the neg- ligence as active or passive discussing doctrine, have afforded the owner protection, regardless whether the contractor was where an negligent, employee of the contractor, engaged work, while injured latter’s by reason of pre-existing condition owner’s premises which dangerous, was defective or or which became dangerous reason of the nature or doing work, and liability attached the owner on the ground
482 with a to furnish such workman
that
failed
negligently
he
work,
ground.
on a similar
place
safe
to
or
at13
734.
Annot., 27 A.L.R.3d §
use of the terms is further
The
inconsistent
majority’s
v.
219
Corp.,
its reliance on Bartlett Davis
demonstrated by
(1976),
for the
that
Kan.
547 P.2d
principle
the
has
and control of
possession
indemnitor
the
“[w]here
indepen
owner
not maintain
work or
and the
does
premises
is
a contract of
operations
dent
on the premises,
own
passive negligence
construed to cover
generally
-3- When the simply issue raised in this this: appeal other, did intend that they contracted with each Authority Noralco should Redevelopment its failure to Noralco’s consequences negligent provide workmen This issue be workplace? may with safe decided without resort terms and “passive” negli- “active” as gence, opinion own demonstrates. For in majority’s spite of its extended discussion the concept “passive” negligence, the not majority grant does the Redevelopment indemnification Authority Authority because the was merely “passively” negligent, parties’ but rather because the con- formation, tract and the surrounding circumstances its in- *15 cluding, alia, inter the nature of the businesses of respective the Authority Noralco, and Noralco’s exclusive control and of possession the work its premises during operations thereon, and the nature of services to be rendered and amount be paid, established, remuneration to clearly and parties convincingly, intended that Noralco would indemnify Authority for suffered injuries by Noralco’s workmen because failure Authority’s provide them with a safe place work. Thus the majority’s discussions “active” and “passive” negligence could have been avoided, easily since the did not themselves use terms,2 those far precise more terminology exists to describe the parties. intentions of the opinion
Today’s by the can serve to majority only encour- age continued reference to “active” and “passive” negli- cases, gence future and thereby encourage unsound think- ing, which, in turn may lead unsound results.
We should have done better to the terms “ac- repudiate tive” “passive,” and relegate them to the realm of legal history. Leidy n.2,
2. See Enterprises, Pa.Super. v. Deseret (1977), phrase A.2d 167 n.2 instance where the “acts passive negligence” appeared exculpatory of active or clause of a written contract.