Recently, in Brown v. City of Oil City, 294 A.3d 413 (2023), the Supreme Court of Pennsylvania was asked to determine whether Section 385 of the Restatement (Second) of Torts imposes liability on a contractor to a third party whenever the contractor creates a dangerous condition on the land that injuries the third party, even though (a) the contractor was not in possession of the land and (b) the possessor was aware of the dangerous condition. In short, the Court affirmed the judgment of the Commonwealth Court in holding that an out-of-possession contractor that creates a dangerous condition may be held liable for patent defects that cause injury to third persons.
By way of factual and procedural background, Oil City in Venango County, Pennsylvania, opened Oil City Library in 1904. By 2011, due to weather and aging, the condition of the concrete stairs leading to the entrance of the library had significantly declined. Accordingly, Oil City contracted with Appellants, Harold Best and Struxures, LLC, and Fred Burns, Inc. (“Contractors”) to remove the failing stairs and install wholly new concrete stairs. Contractors finished their installation of the stairs by the end of 2011. On February 28, 2012, after noticing defects in the concrete, Oil City notified Contractors. Between February 28, 2012, and November 23, 2015, the conditions of the stairs continued to worsen, and neither Oil City nor Contractors made any efforts to repair the stairs or warned the public about the dangerous condition. On November 23, 2015, David Brown (“Brown”) and his wife, Kathryn, exited the library and, while walking down the concrete stairs, Kathryn tripped, fell, struck her head, and suffered a traumatic head injury that later claimed her life.
Brown commenced a wrongful death suit, asserting negligence claims against Oil City and Contractors. At the conclusion of discovery, Contractors filed a motion for summary judgement, arguing that they owed no duty to third persons, as they were not in possession of the premises at the time of the injury. The trial court granted Contractors’ motion for summary judgment, and agreed with the Superior Court’s interpretation of Section 385 that a contractor’s third-party liability is limited only to situations where the contractor created a dangerous defect that the possessor was unlikely to discover. As applied, the trial court concluded that it could not find Contractors “made the area of the stairs in a way that … Oil City was unlikely to discover,” and that “Oil City was aware of the defective nature of the stairs.” Trial Court Opinion, 10/25/19, at 7. Thereafter, Brown appealed the order granting Contractors’ summary judgment to the Commonwealth Court, which reversed the trial court’s order. The Commonwealth Court found that the fact that Oil City had knowledge of the defective nature of the stairs did not relieve the Contractors of liability under Section 385. Thereafter, Contractors sought the instant appeal to the Supreme Court to determine the issue raised regarding its interpretation and application of Section 385.
In pertinent part, comment c to Section 385 provides:
A manufacturer of a chattel who puts it upon the market knowing it to be dangerous and having no reason to expect that those who use it will realize its actual condition is liable for physical harm caused by its use (see § 394). As the liability of a servant or an independent contractor who erects a structure upon land or otherwise changes its physical condition is determined by the same rules as those which determine the liability of a manufacturer of a chattel, it follows that such a servant or contractor who turns over the land with knowledge that his work has made it dangerous in a manner unlikely to be discovered by the possessor is subject to liability both to the possessor, and to those who come upon the land with the consent of the possessor or who are likely to be in its vicinity.
Restatement (Second) of Torts § 385, cmt. c (“comment c”) (emphasis added).
In sum, Contractors argued on appeal that an out-of-possession contractor’s liability should be limited for latent defects and further limited to only defects that are unlikely to be discovered by the possessor of land. See Gresik v. Pa. Partners, L.P., 989 A.2d 344 (Pa. Super. 2009) (emphasis added); see also Gilbert v. Consolidated Rail Corp., 154 Pa. Cmwlth. 249, 623 A.2d 873 (1993) (dissenting opinion). Contractors further argued that the possessors of property have a duty to inspect their property for latent defects and that possessors of property, rather than the contractor, are in the best position to remedy latent defects because the contractor has no contact with the property after completing the work on the property.
In response, Brown argued that the Commonwealth Court correctly found that latency is irrelevant to a Section 385 analysis. Brown further argued that the possessor’s knowledge of the defect should not insulate the contractor for its share of liability, and that both the possessor of land and the contractor should bear their respective responsibility. Consequently, the Supreme Court was tasked with determining, pursuant to Section 385, whether an out-of-possession contractor is liable third parties for all defects, created by his work, patent or latent, or whether the contractor may be held liable only for latent defects.
The Supreme Court concluded that, pursuant to Section 385, a contractor’s liability does not “hinge on whether the defective condition caused is latent or patent.” Instead, the Court concluded that a contractor is liable to third parties for all defects on land which they are responsible for creating through their repair work. Further, the Court rejected Contractors’ argument that their liability is limited to dangerous conditions that a contractor creates that are not readily apparent or obvious. Accordingly, the Court held that a contractor, who has created a dangerous condition through work performed for a possessor of land, may be liable under Section 385 for third parties suffering injuries caused by the dangerous condition, even if that condition is obvious or apparent in nature.
The Brown v. City of Oil City decision can be found here.
For additional questions, please contact Anthony M. Cognetti, Esq. and/or Conrad James Benedetto, Esq.
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