Nertavich v. v. PPL Electric Utilities

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2014 PA Super 184

VINCENT P. NERTAVICH, JR. IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

PPL ELECTRIC UTILITIES, KTA, KTA- TATOR, INC., KTA/SET ENVIRONMENTAL, S-E TECHNOLOGIES, INC., ALEXANDER ANDREW, INC., D/B/A FALLTECH, ALEXANDER ANDREW, INC., FALLTECH, THOMAS & BETTS CORP., THOMAS & BETTS CORP., D/B/A OR T/A MEYER STEEL STRUCTURES, F/K/A I.T.T. - MEYER INDUSTRIES, F/K/A MEYER INDUSTRIES, MEYER STEEL STRUCTURES F/K/A I.T.T.- MEYER INDUSTRIES, F/K/A MEYER STEEL STRUCTURES, ITT- MEYER INDUSTRIES, MEYER INDUSTRIES, MEYER MACHINE, INC. AND WINOLA INDUSTRIAL, INC.

APPEAL OF: PPL ELECTRIC UTILITIES CORPORATION

No. 3415 EDA 2012

Appeal from the Judgment Entered December 5, 2012 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 2316 Sept. Term 2009

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and STRASSBURGER, J.* ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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OPINION BY OTT, J.: FILED AUGUST 27, 2014 $2,494,542.35, entered December 5, 2012, in the Philadelphia County Court of Common Pleas, in favor of Vincent P. Nertavich, Jr., for the injuries he sustained when he fell 40 feet while working as the employee of an

independent contractor1 2 On

appeal, PPL argues the trial court erred in failing to grant judgment notwithstanding the verdict (j.n.o.v.) or a new trial. For the reasons set forth below, we conclude that PPL was entitled to the grant of j.n.o.v., and, accordingly, reverse the judgment entered in favor of Nertavich.

The facts underlying this appeal are summarized by the trial court as follows:

Defendant PPL owns 90-foot-high, 10-foot-in circumference tubular steel electric transmission poles. Some of these poles need to be repainted from time to time to prevent structural decay. PPL contracted with QSC [Painting, contract called for work to begin in August 2007 and be completed by November

____________________________________________ 1 2

and Thomas & Betts Corp., were either dismissed by the trial court or settled prior to trial. Thomas & Betts was the manufacturer of both the electric transmission pole and ladder upon which Nertavich was working when he

sale of the pole was dismissed pretrial by summary judgment. His claim with respect to the ladder proceeded to trial, but the jury found Thomas & Betts was not negligent.

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That PPL Specification document contained a variety of detailed requirements about the job. It prescribed each step how to paint the poles.

....

While the workmen painted, power might continue to surge through the lines attached to the poles. As a result, the

insulators, making sure that paint does not splatter or drip onto

off the insulators. Also, PPL maintained control over the

known as a contract field representative, for the project who was

materials, quality assurance, general safety, work procedures a the circuit breakers so that the workers would not be

PPL representative would not allow workers on the poles until the lines were set.

the contractor to ensure that safety requirements of the contract

involving a direct threat or imminent danger, the field Repre

ordered from Defendant Thomas & Betts, with PPL establishing their specifications. The pole specifications included the dimensions of the pole, its paint, and the number and type of attachment points. PPL was aware that the poles would need repainting every 15 to 20 years. PPL did not specify that the poles should have any vangs[, i.e., pieces of metal,] welded onto anyard or other suspension device could attach to the pole. The only attachment points on the poles, besides those at the top of the poles and on the arms for electrical wires, were a series of brackets running up one side of

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That PPL Specification document contained a variety of detailed requirements about the job. It prescribed each step how to paint the poles.

....

While the workmen painted, power might continue to surge through the lines attached to the poles. As a result, the

insulators, making sure that paint does not splatter or drip onto

off the insulators. Also, PPL maintained control over the

known as a contract field representative, for the project who was

materials, quality assurance, general safety, work procedures a the circuit breakers so that the workers would not be

PPL representative would not allow workers on the poles until the lines were set.

the contractor to ensure that safety requirements of the contract

involving a direct threat or imminent danger, the field Repre

ordered from Defendant Thomas & Betts, with PPL establishing their specifications. The pole specifications included the dimensions of the pole, its paint, and the number and type of attachment points. PPL was aware that the poles would need repainting every 15 to 20 years. PPL did not specify that the poles should have any vangs[, i.e., pieces of metal,] welded onto anyard or other suspension device could attach to the pole. The only attachment points on the poles, besides those at the top of the poles and on the arms for electrical wires, were a series of brackets running up one side of

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[Nertavich] lost 3 inches in height as his body literally compacted from the fall.

Trial Court Opinion, 6/14/2013, at 2-6 (footnotes and record citations omitted).

Nertavich initiated this personal injury/products liability action by writ of summons on September 23, 2009. After filing a complaint and first amended complaint, Nertavich filed a second amended complaint on April Falltech, Thomas & Betts, and Winola Industrial, Inc. which designed, manufactured, and/or sold fall protection equipment, the electric transmission poles, and the single-rail ladders4

PPL and KTA/Set Environmental, the owner of the utility poles and an engineering consulting company hired to oversee the painting work, respectively. Nertavich raised claims of general negligence, professional negligence, strict liability, and breach of warranty, as well as sought punitive damages.

PPL filed a motion for summary judgment on July 5, 2011, which the trial court denied on September 1, 2011.5 The case proceeded to a jury ____________________________________________ 4

5 The other defendants also filed motions for summary judgment. Relevant to this appeal, Thomas & Betts filed a motion for partial summary judgment, products liability claim with respect to the manufacture and design of the transmission pole was barred by the statute (Footnote Continued Next Page)

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the pole. These brackets served as attachment points for removable single-

wobble, frightening workers. There was no place for a worker climbing the pole to attach a lanyard or lifeline, except for somewhere on these ladders. There were two types of ladders. Both consisted of a central metal beam with metal pegs protruding out to the left and right. The first, termed a working ladder, had parallel pegs on each side to give the appearance of a straight bar across the rail so that a worker could stand level. The second type, the climbing ladder, had alternating pegs staggered at regular intervals up each side of the rail. The ladders came from the manufacturer with two bolts that attach through their bottom to secure them to the pole. QSC, not having another means of lifting its workers into place to paint the pole, asked PPL for the removable ladders. PPL provided QSC with the ladders, but not with the bolts.

On September ground working on a PPL pole. More experienced workers were painting the pole above him. He was standing on one of the climbing ladders. QSC provided [Nertavich] with a pole belt, a body harness, and two lanyards. One lanyard was to attach to the pole belt, and the other was to attach to the body harness to serve as a lifeline. [Nertavich] used only the pole belt and one lanyard. He testified at trial that on previous jobs he had used only the pole belt and one lanyard, and that no one told him he had to use the harness as well.[3] The one lanyard he used was coated in dried paint. [Nertavich] tied the paint-coated lanyard to the ladder above him, a working ladder, by looping it around a left peg. [Nertavich], holding on to the lanyard, leaned out to his left to slap paint on a hard-to-reach spot on the back of the pole. The ladder above him to which he was tied off wobbled several inches to the left. The lanyard unlooped. [Nertavich] fell 40 feet, landing on his feet. The fall fractured his feet, dislocated his ankles, fractured his knee, his right femur, his right hip, and burst several of his lumbar spine disks.

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3 Indeed, Nertavich admitted that his body harness was in his truck on the day of his accident. N.T., 3/1/2012, at 129-130.

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trial, commencing in February of 2012. PPL moved for a nonsuit at the

-in-chief, and a directed verdict at the close of all testimony, both of which were denied by the trial court.6 On March 9, 2012, the jury returned a verdict in favor of Nertavich in the amount of $4,613,150.00. However, the jury found PPL 51% causally negligent for injuries. The jury also found that the ladder designed by Thomas & Betts was not defective.7

Both parties sought post-trial relief. On March 13, 2012, Nertavich filed a motion for delay damages, and, on March 19, 2012, PPL filed post-trial motions seeking j.n.o.v. or a new trial. The trial court granted

motion, and, on April 9, 2012, entered a molded verdict in the amount of $2,494,542.35 in favor of Nertavich and against PPL.8 Thereafter,

-trial motion, and on

_______________________ (Footnote Continued)

of repose. See 42 Pa.C.S. § 5536. The trial court agreed, and dismissed that claim. See Order, 9/1/2011. 6 The trial court did, howe

7 Accordingly, Thomas & Betts has not filed a brief in this appeal. 8 The molded verdict reflects both a reduction in the total award based upon

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December 5, 2012, judgment was entered on the verdict. This timely appeal followed.9

PPL raises the following four issues on appeal:

(1) Is PPL entitled to judgment notwithstanding the verdict for injuries sustained by an employee of an independent contractor when controlling Pennylvania law, as reflected in Beil v. Telesis Construction, Inc., 608 Pa. 273, 11 A.3d 456 (Pa. 2011), requires that PPL exercise significant control over the manner, methods, means, and operative

that is specifically related to the accident, and the evidence at trial established that the independent contractor itself directed and exercised control over its work?

(2) Is PPL entitled to a new trial on liability when the Court improperly permitted Nertavich to introduce evidence of including such things as

onsite safety representative, and a common law duty to hire competent contractors when those purported duties are inconsistent with Beil or otherwise inapplicable under the law?

(3) Is PPL entitled to a new trial on liability when the Court instructed the jury contrary to Beil?

(4) Is PPL entitled to judgment notwithstanding the verdict when the evidence established that Nertavich assumed the risk of his fall?

-4. Because we conclude that PPL is entitled to j.n.o.v. on its first issue, we need not address its remaining claims. ____________________________________________

9 The trial court did not direct PPL to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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not responsible for the acts or omissions of such independent contractor or

Beil, supra, 11 A.3d at 466 (emphasis supplied).

This foundational law is based upon the long-standing notion that one is not vicariously liable for the negligence of an independent contractor, because engaging an independent

manner of doing the work contracted for. How can the other party control the contractor who is engaged to do the work, and who presumably knows more about doing it than the man who by contract authorized him to do it? Responsibility goes with Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362, 364 (1932).

Id.

However, this general rule is subject to certain exceptions. Relevant 414 of the Restatement (Second) of Torts:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Restatement (Second) of Torts § 414 (1965).

The Beil Court discussed the degree of control necessary to hold an owner liable for injuries suffered by an employee of an independent contractor under Section 414:

The primary question in many premises cases, as is the issue before us, is whether the property owner hirer of the independent contractor retained sufficient control of the work to be legally responsible for the harm to the plaintiff. Comment c to Section 414 provides the most commonly used test for determining whether an employer/landowner retained sufficient control. More precisely, comment c speaks to the degree of

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First, PPL contends it is entitled to j.n.o.v. because Nertavich failed to establish that it retained control over the manner, methods, means, and overcome the general rule that an owner owes no duty to the employees of an independent contractor.

be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/or, (2) the evidence was such that no two reasonable minds could disagree that the verdict should have

Egan v. USI Mid-Atl., Inc., 92 A.3d 1, 19-decision granting or denying a post-trial motion for j.n.o.v. is well-established:

When a court reviews a motion for judgment n.o.v., the reviewing court considers the evidence in the light most favorable to the verdict winner, who must receive the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his or her favor. A judgment n.o.v. should only be entered in a clear case.

Beil v. Telesis Const. Inc., 11 A.3d 456, 462 (Pa. 2011) (citations omitted). Further, we will not substitute our judgment for that of the fact finder when it comes to questions of credibility and weight of the evidence. Egan, supra, 92 A.3d at 20 (citation omitted).

In Beil, the case upon which PPL relies for support of its appeal, the

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not responsible for the acts or omissions of such independent contractor or

Beil, supra, 11 A.3d at 466 (emphasis supplied).

This foundational law is based upon the long-standing notion that one is not vicariously liable for the negligence of an independent contractor, because engaging an independent

manner of doing the work contracted for. How can the other party control the contractor who is engaged to do the work, and who presumably knows more about doing it than the man who by contract authorized him to do it? Responsibility goes with Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362, 364 (1932).

Id.

However, this general rule is subject to certain exceptions. Relevant 414 of the Restatement (Second) of Torts:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Restatement (Second) of Torts § 414 (1965).

The Beil Court discussed the degree of control necessary to hold an owner liable for injuries suffered by an employee of an independent contractor under Section 414:

The primary question in many premises cases, as is the issue before us, is whether the property owner hirer of the independent contractor retained sufficient control of the work to be legally responsible for the harm to the plaintiff. Comment c to Section 414 provides the most commonly used test for determining whether an employer/landowner retained sufficient control. More precisely, comment c speaks to the degree of

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because the poles were energized, and there were no other attachment points on the poles to rig other climbing devices. QSC had to request these ladders from PPL to climb the poles.

These facts, especially the way in which PPL dictated how QSC workers were to perform their painting work coupled with evidence of control over safety and access, evince the quality of control that the Supreme Court found lacking in Beil. The qualitative element being present, it was for the jury to determine if the quantity of control necessary to make PPL liable existed. There were ample facts in evidence, including the

to determine that the necessary quantum of control existed as they did.

Id. at 16-17 (footnote omitted).

Conversely, PPL argues the type of control Nertavich claims it retained over the jobsite in this case is the same type of control the Supreme Court found insufficient in Beil

-run Beil through a so-matter of law. We agree.

Beil decision on the issue of landowner liability for injuries sustained by the employee of an independent contractor. A discussion of the facts and disposition in Beil will be helpful to our resolution of the present case. They are as follows.

Lafayette Colleg Telesis subcontracted the roofing work to Kunsman Roofing and Siding

also

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restore stonework on the exterior of the building. On the day of the accident, Beil was installing flashing on the roof. He used scaffolding erected by MPS, after consultation with the College, to access the roof. While ascending the ladder with 15 pounds of flashing, he fell 30 feet, and sustained serious injuries. Beil subsequently filed a personal injury action against the College, Telesis, and MPS. A jury awarded damages of $6.8 million, and apportioned liability as follows: Telesis 50% liable, the College 35% liable, MPS 10% liable and Beil 5% liable. The College appealed, and this Court reversed and remanded for the entry of j.n.o.v. in favor of the College. Beil then petitioned the Supreme Court for allowance of appeal. See Beil, supra, 11 A.3d at 458-462. On appeal, the Supreme Court retain sufficient control of the premises to subject it to liability pursuant to

Id. at 472. retained control of the premises in two broad categories: safety and access. Id. at 46 Id. He presented the following evidence in support of that claim: (1) Telesis was contractually obligated to comply with the safety directives of

-site project manager was consulted as to

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because the poles were energized, and there were no other attachment points on the poles to rig other climbing devices. QSC had to request these ladders from PPL to climb the poles.

These facts, especially the way in which PPL dictated how QSC workers were to perform their painting work coupled with evidence of control over safety and access, evince the quality of control that the Supreme Court found lacking in Beil. The qualitative element being present, it was for the jury to determine if the quantity of control necessary to make PPL liable existed. There were ample facts in evidence, including the

to determine that the necessary quantum of control existed as they did.

Id. at 16-17 (footnote omitted).

Conversely, PPL argues the type of control Nertavich claims it retained over the jobsite in this case is the same type of control the Supreme Court found insufficient in Beil

-run Beil through a so-matter of law. We agree.

Beil decision on the issue of landowner liability for injuries sustained by the employee of an independent contractor. A discussion of the facts and disposition in Beil will be helpful to our resolution of the present case. They are as follows.

Lafayette Colleg Telesis subcontracted the roofing work to Kunsman Roofing and Siding

also

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restore stonework on the exterior of the building. On the day of the accident, Beil was installing flashing on the roof. He used scaffolding erected by MPS, after consultation with the College, to access the roof. While ascending the ladder with 15 pounds of flashing, he fell 30 feet, and sustained serious injuries. Beil subsequently filed a personal injury action against the College, Telesis, and MPS. A jury awarded damages of $6.8 million, and apportioned liability as follows: Telesis 50% liable, the College 35% liable, MPS 10% liable and Beil 5% liable. The College appealed, and this Court reversed and remanded for the entry of j.n.o.v. in favor of the College. Beil then petitioned the Supreme Court for allowance of appeal. See Beil, supra, 11 A.3d at 458-462. On appeal, the Supreme Court retain sufficient control of the premises to subject it to liability pursuant to

Id. at 472. retained control of the premises in two broad categories: safety and access. Id. at 46 Id. He presented the following evidence in support of that claim: (1) Telesis was contractually obligated to comply with the safety directives of

-site project manager was consulted as to

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a post-accident email that the roofers were working in a potentially unsafe expert testimony that the College controlled safety at the site. Id. With certain are Id. at 469. In support of this contention, he produced evidence that: (1) the College denied the roofers access to certain areas of the building; (2) the subcontractors had to obtain written permission to enter the building; and (3) the College hired MPS, whose scaffolding was used, and the College was consulted as to where to place the scaffolding. Id. at 469-470.

However, the Supreme Court held that a property owner may retain a certain degree of authority over safety issues, as well as regulate the use of retaining a certain degree of authority over safety issues, such as supervising and enforcing safety requirements, and even imposing its own safety requirements at a work site, does not constitute control for purposes

Id. at 469 (footnote omitted). Rather, a property public policy. Id. at 468. subs

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Id. at 471. Rather, the Court explained,

[did] not directly relate to the decis

equipment, which Kunsman contracted to provide, and Telesis contracted to ensure was safe. While MPS permitted the Kunsman roofers to use its scaffolding, Telesis did not anticipate or rely upon the use of MPS scaffolding for access to the roof, and access was for Kunsman to determine.

Id. Accordingly, the Beil exercised certain authority regarding safety and regulated access to, and use of, certain areas of the premises, this is not the type of conduct that

Id. at 472.

In the present case, however, the trial court opined that the facts

ly the way in which PPL dictated how QSC workers were to perform their painting work coupled with evidence of control over safety and access, evince the quality of control that the Supreme Court found lacking in Beil 17 (footnote actual exercise to be sufficient in the present case] are the very same theories of control

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rejected by Beil and its ancestors. follow, we agree.

With respect to the contract provisions,10 the trial court first found that

which included such details as the specific type of paint to use, how to apply the paint (i.e., by concealing brush marks,

without runs, by applying a uniform finish and thickness, etc.), and the 11 - constituted control

specifications had nothing directed QSC workers how to tie off to the pole, how to climb the pole, or ____________________________________________

10 rpretation is to ascertain the intent of the contracting parties. In cases of a written contract, the intent of the Lesko v. Frankford Hospital-Bucks County, 15 A.3d 337, 342 (Pa. 2011) (quotation omitted). 11 See Contract, 8/30/2007, Attachment A, at 2, ¶ 17.

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Id. at 1062.

In the present case, the contract provided quality specifications for the painting of the transmission poles.13 to do with these quality specifications. Rather, Nervatich fell when the ladder he tied off on wobbled, and the single lanyard he used as fall protection slid off the rung.14 Moreover, Nertavich has failed to identify any contractual provisions that instructed QSC how to climb the poles safely to complete the painting work.15 Rather, the contract specifically provided

ing equipment necessary to complete this painting contract in an efficient ____________________________________________

13 Gallus Wukitsch, who at the time of the accident was a senior engineer in P - -in-chief. He explained why the contract

Keeler and Long product, you d

understand that the paint we were specifying had certain requirements by Id. at 53. 14

nyard attached which is how he had been working -226 15 As we will discuss infra, Nertavich also contends that PPL actually controlled how QSC climbed the poles.

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A, at 3, ¶¶ 23 and 26. As specifications set forth in the contract did not establish that accident.16

Secondly, with regard to the terms of the contract, the trial court also

See Trial Court Opinion, 6/14/2013, at 16-17. Specifically, the court noted that (1) the contract specified safety provisions to be followed, and (2) created the position of a PPL contract field supervisor, Wayne Grim, whose duty it was to

monitor safety conditions at the work site and hold daily safety meetings.17 ____________________________________________

16 f the operational

the contract provided specific, detailed painting specifications. However, how QSC was to achieve those specifications was up to the company, itself.

at 146; Videotaped Deposition of John Pateras, 7/22/2010, at 31. More importantly, as discussed supra, the contract did not specify how QSC was . 17 As became evident during trial, Mr. Grim had no training or experience climbing steel transmission poles. N.T., 2/29/2012, at 154. However, he Id. at 170. Indeed, Nertavich confirmed that no one from PPL directed the painters as to how to do their jobs, and QSC had its own foreman, Mike Healy, who rotated between three or four QSC painting crews on the PPL (Footnote Continued Next Page)

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Id. at 1062.

In the present case, the contract provided quality specifications for the painting of the transmission poles.13 to do with these quality specifications. Rather, Nervatich fell when the ladder he tied off on wobbled, and the single lanyard he used as fall protection slid off the rung.14 Moreover, Nertavich has failed to identify any contractual provisions that instructed QSC how to climb the poles safely to complete the painting work.15 Rather, the contract specifically provided

ing equipment necessary to complete this painting contract in an efficient ____________________________________________

13 Gallus Wukitsch, who at the time of the accident was a senior engineer in P - -in-chief. He explained why the contract

Keeler and Long product, you d

understand that the paint we were specifying had certain requirements by Id. at 53. 14

nyard attached which is how he had been working -226 15 As we will discuss infra, Nertavich also contends that PPL actually controlled how QSC climbed the poles.

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A, at 3, ¶¶ 23 and 26. As specifications set forth in the contract did not establish that accident.16

Secondly, with regard to the terms of the contract, the trial court also

See Trial Court Opinion, 6/14/2013, at 16-17. Specifically, the court noted that (1) the contract specified safety provisions to be followed, and (2) created the position of a PPL contract field supervisor, Wayne Grim, whose duty it was to

monitor safety conditions at the work site and hold daily safety meetings.17 ____________________________________________

16 f the operational

the contract provided specific, detailed painting specifications. However, how QSC was to achieve those specifications was up to the company, itself.

at 146; Videotaped Deposition of John Pateras, 7/22/2010, at 31. More importantly, as discussed supra, the contract did not specify how QSC was . 17 As became evident during trial, Mr. Grim had no training or experience climbing steel transmission poles. N.T., 2/29/2012, at 154. However, he Id. at 170. Indeed, Nertavich confirmed that no one from PPL directed the painters as to how to do their jobs, and QSC had its own foreman, Mike Healy, who rotated between three or four QSC painting crews on the PPL (Footnote Continued Next Page)

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at 17.

However, the Beil Court made clear that a property owner who retains enforcing safety requirements, and even imposing its own safety requirements at a work site, does not constitute control for purposes of imposing liabil Beil, supra, 11 A.3d at 469. Moreover, the terms of the contract in the present case clearly placed responsibility for job site safety upon QSC. The contract explicitly provided:

responsibilities under this Contract while performing Work on

for safety-related reasons, these actions are for the primary purpose of protecting Company personnel and property. Contractor shall remain solely responsible for the safe performance of the Work under this Contract. The provisions of this article shall be interpreted and construed in a

contractor. Contract, 8/30/2007, at 6-7, ¶ M (emphasis supplied). See id. at 5, ¶¶ D

_______________________ (Footnote Continued)

job. N.T., 3/1/2012, at 161- -worker Ryan Wheeler testified that Healy would yell at the painters if they were not using fall protection on a pole. See N.T., 2/27/2012, at 132; Videotaped Deposition of Ryan Wheeler, 7/21/2010 at 90.

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18 shall take all reasonable precautions for the

safety of all Contractor personnel engaged in the Work and shall

See also id. at be safely painted in [their] entirety prior to start of work on that to provide all personal protecti

19 -related reason that

type of safety oversight was the same which the Supreme Court found permissible in Beil. See Beil, supra property owner retaining a certain degree of authority over safety issues, such as supervising and enforcing safety requirements, and even imposing its own safety requirements at a work site, does not constitute control for

See also LaChance, supra, 869 A.2d at 1060- ised to assure

itself that [independent contractor] performed its work safely, as [it] had ____________________________________________

Painting 19 See Contract, 8/30/2007, at 5-6, ¶ F.

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agreed in its contract, did not make [landowner] the guarantor of the safety

Moreover, with respect to the contract, the trial court also found PPL

fied that this areas of any questions, materials, quality assurance, general safety, work Moreover, the t to as GSP-19, which stated that the contract field representative was to

cedures, Section 19 (Revisedestablishment of the position of contract field representative demonstrated Nerta

However, in , 911 A.2d 1264 (Pa. 2006), the Supreme Court rejected a similar claim that a

-site safety supervisor established that the landowner retained control over the worksite.

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of a section of an expressway in western Pennsylvania. PTC also hired responsible to administer and oversee several projects, as well as monitor the safety procedures of the other contractors. Id. at 1268. Farabaugh, an employee of NESL, was fatally injured when he drove a loaded, off-highway dump truck up a hill and the haul road he was traveling on collapsed due to instability in the hill. His Estate argued at trial that the haul road did not comply with safety measures. Id. at 1269. The trial court granted summary judgment in favor of PTC and Trumbull, and the Commonwealth Court reversed. Id. at 1270-1271.

20 at PTC

safety orientation videotape to all those employed on the jobsite, (2) by ____________________________________________

20 reversal of summary judgment with respect to Trumbull, concluding:

[u]nder the relevant contract of care to Decedent based upon its contractual obligation to perform safety inspections and other monitoring functions. A determination of the scope of the duty and whether this duty was breached, however, requires further development of the

proximate cause of the accident.

Id. at 1267. Unlike in the present case, Trumbull was contractually obligated to monitor safety on the job site.

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employing an on-site safety inspector, and (3) by contracting with Trumbull to provide construction management services. Id. at 1273-1274. However,

LaChance dictates that [a landowner] monitor the safety of its highway construction

Id. at 1275, quoting LaChance, 869 A.2d at 1064. Furthermore, the Farabaugh Court held:

It would likewise disserve public policy to impose liability on PTC for going one step further and hiring a contractor specifically to supervise safety issues on site in addition to requiring its general contractor to be responsible for safety under its own contract with PTC. Instead, we ct with PTC, PTC turned over control of the worksite to its general contractor, NESL, and did

of a Section 414 analysis. Id. at 1275.

tract field representative, responsible for, inter alia practices, did not evidence its retention of control over all matters of work for th 8/30/2007, at 7 ¶ M. misplaced. The GSP internal company documents that set forth safety

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-51. In particular, while GSP 19, which governs contractor safety, states that the

ontractor to ensure that Section 19 (Revised January 2005) at ¶¶ 5.4, 7.2. See also id. at ¶ 7.1. Therefore, although GSP 19 encourages PPL employees to monitor the safety safety matters on the job site. Moreo internal documents, which are not provided to the independent contractors or their employees. N.T., 2/29/2012, at 136. Accordingly, we conclude that

te based

See Beil, supra, 11 A.3d at 467.

Turning to the second part of the Beil control test, PPL may still be

based on its actual conduct. Id. 21 sufficient to find it liable for

____________________________________________

21 Trial Court Opinion, 6/14/2013, at 17.

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s to

-rail ladders; and (3) by providing these ladders to QSC without the necessary bolts to secure them to the transmission poles. See Trial Court Opinion, 6/14/2013, at 17, 21. PPL argues, conversely, that none of this evidence demonstrated its retention of control over the job site. it wa engineer, Wukitsch described the procedure as follows:

Green tag procedure allows us to work on facilities. And what

contacts a line or some other thing, the lines trip out and automatically reclose.

cker real fast. Lines trip and

With a green tag permit, we actually go to the end points at the substations, at the circuit breakers. We change the condition of those circuit breakers so that if at any time those electrical lines would trip for any reason, they would

N.T., 2/29/2012, at 14- ephen Estrin, testified that the procedure was necessary to ensure that QSC workers were

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the job site:

QSC was not given unfettered discretion of when, where and how to work. They had to get this tag before they could work. So if they arrived on the job site at 0700 and PPL had not issued the green tag, they could not access the pole and perform work. They would have to wait till [PPL] issued them the tag.

Id. at 105.

PPL contends, however, that this argument is similar to the controlled access claim rejected by the Supreme Court in Beil. In Beil, the College

ted with MPS as to where to erect its scaffolding, which Beil later used to access the roof. Nonetheless, the Beil

ontrol over the manner, method, means, or operative detail in which the work is

Beil, 11 A.3d at 471. The Court opined:

They are tangential to the substantive work of the contractor, and subcontractor. Simply stated, the College did not control the way the workers did their work.

does not directly relate to the decision of

scaffolding instead of [its] own equipment, which [it] contracted to provide, and [the general contractor] contracted to ensure was safe. While MPS permitted the [subcontractor] roofers to use its scaffolding, [the general contractor] did not anticipate or rely upon the use of MPS scaffolding for access to the roof, and access was for [the subcontractor] to determine.

Id. (emphasis supplied and record citation omitted).

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Similarly, here, the green tag permit simply indicated to QSC that the pole was not energized, and it was safe for QSC to perform its painting work, pursuant to the contract, by whatever means it saw fit. Indeed, the permit procedure did not directly relate to the decision of QSC concerning how its employees would climb the poles. As the Beil novel, if not absurd, interpretation of Section 414 if an independent

Id. at 470. Furthermore, the

issuance of a green tag permit for the pole had nothing to do with the 22 Accordingly, we find that the green tag permit

Second, the trial court also to the poles by limiting the available ways to scale the poles to the use of single rail ladders. Trial Court Opinion, 6/14/2013, at 17. Indeed, Nertavich

t any other means for

This finding, however, ignores the specific terms of the contract that ____________________________________________

22 Had Nertavich been electrocuted as a result of the improper issuance of a green tag permit, we would be inclined to conclude that PPL maintained control over that aspect of the job site, and was subject to liability.

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equipmen Contractor to field locate the structu

Id. at 1. The contract also stated that the

ot be safely

Id. at 2, ¶ 12. Accordingly, the terms of the contract placed all responsibility for determining how to access the transmission poles upon the knowledgeable independent contractor, QSC. QSC, the experienced contractor, not PPL, determined how to climb the Deposition of John Pateras, 7/22/2010, at 31. He confirmed that the

-rail ladders, to access

23 Id. at 32. See also N.T., 2/27/2012, at ____________________________________________

23 We note that Nertavich argues PPL was negligent for not questioning QSC

Program (Revision No. 3), 11/27/1995, at 61. However, the above (Footnote Continued Next Page)

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co-

. However, this argument ignores the reality that QSC was the expert painting contractor, with 16 years of experience in industrial painting, and most of its experience working for power companies, such as PPL. N.T., 2/28/12, at 146; Videotaped Deposition of John Pateras, 7/22/2010, at 14-15. In fact, Wukitsch testified that all of the contractors who attended the pre-bid meeting, including QSC, understood that they would be accessing the

rs told him they had used them before. N.T., 2/29/2012, at 110-111. PPL provided the job specifications, and deferred to the specialized expertise of the contractor to determine how to safely complete the work. Accordingly, we conclude

suggest or provide alternative means to access the transmission poles is not evidence of its retention of control over the job

site. _______________________ (Footnote Continued)

was entitled to rely on the expertise of the independent contractor it hired to perform this specialized work.

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supplying the single-rail ladders to QSC. The cour supply their ladders only after it was unable to obtain them itself. Pateras

But I do remember in the bidding process that originally we were supposed to furnish the climbing devices. I called the company

furnish it. Then I believe I had spoke[n] to PP&L and told them about the problem. And PP&L furnished some climbing devices.

N.T., 2/28/12, at 146; Videotaped Deposition of John Pateras, 7/22/2010, at 71. Pateras testified that he was at the warehouse when his employees

Id. at 73. Moreover, Wukitsch testified that after PPL located the single-rail ladders,

[w]e showed [QSC] what we had and said: We would make these available for your use.

working order. They were the ones who picked them up and took them out to the job site, installed them.

N.T., 2/29/2012, at 35 (emphasis supplied). Indeed, Wukitsch testified that for all c

Id. at 114-115. See also Contract, 8/30/2007, Attachment A at 3, ¶ 23. He explained that the language was added to make clear that

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he ladders, carry them, put them on,

Id. at 115.

Therefore, while PPL made available to QSC the actual ladders the contractor used to climb the transmission poles, we do not find that, by

PPL only made the ladders available when QSC was unable to obtain them on its own. Significantly, there was no evidence that PPL mandated that QSC use these particular ladders to climb the transmission poles. Indeed, the language of the contract was cle rigging equipment necessary to complete this painting contract in an after inspection of the ladders, was free to reject them, or choose a different means to climb the poles. Accordingly, we conclude the trial court erred in

-rail ladders Nertavich used the climb the transmission poles established its retention of control over the job site.24 ____________________________________________

24 We do not find that the decision of the Pennsylvania Supreme Court in Byrd v. Merwin, 317 A.2d 280 (Pa. 1974), mandates a different result. In that case, Byrd was an employee of an electrical subcontractor hired to

contractor on the job.

was installing electrical wiring. The usual procedure in such situations was to install the staircase prior to wiring the house. Id. at 518.

(Footnote Continued Next Page)

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Because we conclude that the evidence, viewed in the light most favorable to Nertavich, did not establish that PPL retained sufficient control over the job site, based on the contract provisions and actual control, to subject it to liability motion for j.n.o.v. presented evidence that PPL was directly liable for his injuries. He argues Beil direct liability when the landowner,

_______________________ (Footnote Continued)

Byrd sued both Olin and Merwin, and a jury returned a verdict in his Section 414 of the Restatement. On appeal, the Supreme Court reversed,

Id. at 282. Further, Merwin, the general

Id. must be remembered that it was Olin who ordered electrical work started b Id.

First, we note that Byrd was a plurality decision, with three justices joining the majority, two justices concurring in the result, and one justice dissenting. In addition, the facts in Byrd were clear that the owner retained control of the work site and actually instructed the subcontractor when and where to begin his work. There is no such degree of control in the present case.

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as here, engages in its own, independent negligent conduct that directly of law, we conclude that his claims of direct negligence in the present case fail.25

Nertavich claims PPL was directly liable for his injuries based on the the Restatement (Second) of Torts, because PPL provided single-rail ladders, ____________________________________________

25 We note that both the trial court and Nertavich cite Chenot v. A.P. Green Services, Inc., 895 A.2d 55 (Pa. Super. 2006), for the proposition that a land owner may be directly liable to the employee of an independent contractor for its own negligent acts. Trial Court Opinion, 6/14/2013, at 20 we disagree that Chenot stands for such a broad principal of law. Indeed, the Chenot Court simply found

In that case, Chenot was exposed to asbestos dust while working as an employee of Philip Carey, an independent contractor retained by Koppers Company to install new insulation in one of its manufacturing facilities. Chenot later contracted mesothelioma as a result of this exposure. Chenot, supra, 895 A.2d at 58. In concluding that Koppers owned a duty of care to

of a danger on his premises has a duty to warn an independent contractor of that danger, whether or not the contractor exercises full control over the premises. Id. at 64.

Therefore, rather than stand for the broad proposition that a landowner may be directly liable to the employee of an independent

doctrine, a doctrine which the trial court found inapplicable in the present case. See

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without accompanying bolts to secure the ladders to the transmission poles, and provided an unqualified contract field representative to monitor safety practices on the job site; (2) negligent design of the transmission poles,

because PPL failed to require the pole manufacturer to include lifeline 26 and the

National Electric Safety Code (NESC). For the reasons that follow, we conclude that none of these theories should have been presented to the jury.

Section 323 of the Restatement (Second) of Torts, commonly known as the 27 imposes liability when one gratuitously undertakes

to perform a service for another:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

Restatement (Second) of Torts § 323 (1965). ____________________________________________

26 Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. 27 Filter v. McCabe, 733 A.2d 1274, 1276 (Pa. Super. 1999), appeal denied, 758 A.2d 1200 (Pa. 2000).

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QSC with the single-rail ladders, it did so negligently when it failed to also provide the bolts to secure the ladders to the transmission poles. We increased the risk of harm to Nertavich or that Nertavich, or, in fact, QSC, with the single-rail ladders supplied by PPL, and, indeed, had requested were aware that the ladder could be secured to the transmission pole with a bolt. For example, another QSC painter, Donald Thompson, testified that he ladders in question. N.T., 3/7/2012, at 157. He explained that he had painted more than 5,000 poles, and while some had ladders permanently attach Id. at 157-158. He also testified why he never used bolts when he installed the single-rail ladders:

gets hard. The red primer was 6000 primer. It sets in there, and you have to sometimes beat them out to get it to come back out.

Id. as their use on the PPL job. Id. Moreover, Nertavich, himself, testified that prior to the PPL job, he had painted approximately two dozen similar

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including the one in question. N.T., 3/1/2012, at 23, 25-26. He testified he had never seen a bolt attaching the ladder to the poles on any job. Id. at 36-37.

ularly, when his own co-worker acknowledged that QSC never used bolts to attach the single-rail ladders to the poles in a temporary application, and Nertavich, himself admitted he never saw a bolt attaching the ladder to the pole on any job. Moreover, bec industrial painting expert, he cannot establish that his accident resulted from

Second, Nertavich argues PPL was directly liable for his injuries when it chose to provide an on-site contract field representative to ensure job site safety procedures were being followed, but then negligently appointed Grim to the position, who had no training or experience on the proper way to climb and tie-off on a transmission pole. We conclude, however, this argument runs counter to the dictates of Beil, Farabaugh, and LaChance,

As our sister court stated in LaChance

LaChance, supra, 869 A.2d at 1064. Furthermore, in Farabaugh, the Supreme Court

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concluded that safety issues at the job site. Farabaugh, supra, 911 A.2d at 1275. Moreover, in Beil, the Supreme Court reiterated that a property owner who supervising and enforcing safety requirements, and even imposing its own safety requirements at a work site, does not constitute control for purposes

Beil, supra, 11 A.3d at 469 (footnote omitted). To hold that an owner who designates an, albeit inexperienced, on-site safety representative may be held liable under Section 323 of the Restatement, would undercut the case law cited above, as well as the general rule that a landowner is generally not responsible for the acts or omissions of his independent contractor.28 Id. at 466.

Furthermore, the imposition of liability under these circumstances contract provided for the designation of a contract field representative, who ____________________________________________

28 Our conclusion might be different if there was any evidence that Grim provided instructions or directions to Nertavich or the other QSC employees. However, the testimony was undisputed that Grim provided no direction at all.

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questions, materials, quality assurance, general safety, work procedures and 29 solely

responsible Contract, 8/30/2007, at 7, ¶ M (emphasis supplied). Therefore, we conclude

Next, Nertavich claims PPL was directly liable for his injuries because it failed to require the transmission pole manufacturer, Thomas & Betts, to include lifeline attachment points, or vangs, on the poles. He argues:

PPL was responsible to advise Thomas & Betts of any attachment points it wanted on its poles because PPL was in the best position to know what it needed to do on its poles by way of access and maintenance. PPL knew that its poles would need to be repainted. PPL knew that workers would need to access its poles to paint them. PPL, by ordering the ladders to access and work on its poles, knew that workers would need to climb the

should have known, that QSC prohibited the use of single rail ladders. PPL knew or should have known that such ladders did not provide adequate safe tie-offs for the lifelines needed by the workers to perform their duties safely and were also proscribed by OSHA.

transmission pole, attempts to end-

determination that the statute of repose barred any claim based upon the ____________________________________________

29 Contract, 8/30/2007, Attachment A, at 2, ¶ 6.

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court granted or manufacture of the transmission pole was barred by the statute of repose, 42 Pa.C.S. § 5536. The statute mandates, in relevant part, that any action observation of construction, or construction of any improvement to real

property must be commenced within 12 years after completion of 30 42 Pa.C.S. § 5536(a). Therefore,

any challenge to design of the pole should be similarly barred.31 ____________________________________________

30 Wukitsch testified that the transmission pole that Nertavich was painting

the mid- at 17. Therefore, it had been in place more than 20 years on September 23, 2007, the date of the accident. 31

was tainted by hearing evidence of the defective pole, which was not an issue in the case. He claims that the only evidence he produced regarding

asserted the pole was defective n.7. However, PPL did not assert a claim against Thomas & Betts claiming that the pole was defective. Rather, its counterclaims asserted only allegations of joint and several liability and contribution/indemnification. See Second Amended Complaint, May 11, 2011, at ¶¶ 119-120.

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that under Pennsylvania law the defendants could owe plaintiff a duty of care. It is important to reiterate that to use the OSHA regulation as evidence here is not to apply the OSHA

for use as evidence of the standard of care owed to plaintiff. This is precisely how the Pennsylvania state courts had employed OSHA regulations. See e.g. Brogley v. , 306 Pa.Super. 316, 452 A.2d 743, 746 (1982).

Id. at 1014 (emphasis supplied). Therefore, the Third Circuit concluded evidence of the violation of an OSHA regulation was relevant to the issue of the standard of care, only after the court first determined that the defendant owed a duty of care to the plaintiff.

In that case, the Court found that Kane owed a duty to Rolick pursuant possessor of land must exercise reasonable care to protect invitees from non- Id. at 1011. The Court recognized that,

[a]lthough the duty owed to an independent contractor varies depending upon the control the possessor maintains over the work still use reasonable care to make the premises safe or give adequate and timely warning of dangers known to him but unknown to the contractor....

Id. (citation omitted and emphasis supplied). Section 343, however, is inapplicable in the present case because none of the purported causes of Nert i.e., the failure to use a second lanyard, the use of a

constituted dangers known to PPL, but unknown to Nertavich or his employer, QSC. Moreover, as discussed supra, we conclude

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that the evidence presented by Nertavich we conclude that PPL owed no duty to Nertavich, the employee of an independent contractor, it would have been improper for the jury to consider

Therefore, because we conclude that PPL was entitled to judgment as post trial motion for j.n.o.v. See Egan, supra. Accordingly, we reverse the judgment entered against PPL, and remand for the entry of j.n.o.v. Because our dispositi remaining claims.

Judgment reversed. Case remanded for entry of j.n.o.v. Jurisdiction relinquished.

Strassburger, J., files a Dissenting Opinion. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/27/2014

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