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August 26, 1960

Joaquina QUINONES, Administratrix of the Estate of Sixto Quinones, Deceased, Plaintiff,
TOWNSHIP OR UPPER MORELAND, COUNTY OF MONTGOMERY, PA., and Miles Potter, Defendant and Third-Party Plaintiff, v. Patrick J. McCABE, James McCabe, Sr., and Bernard McCabe, individually and as co-partners, trading as McCabe Brothers, Third-Party Defendants

The opinion of the court was delivered by: EGAN

On August 21, 1957, McCabe Brothers, the third-party defendants, were engaged in the construction of certain sewers for the Township of Upper Moreland, Pennsylvania, one of the defendants. As part of this job, a trench about 25 feet deep and four or five feet wide was being excavated. The plaintiff's decedent, an employee of McCabe Brothers, was operating a drill at the bottom of the trench when the sides of the trench caved in and a large quantity of dirt fell upon him and buried him. He died instantly of suffocation and a skull fracture.

In disregard of a state statute, 43 P.S. § 25-2(f), and in violation of regulations of the Pennsylvania Department of Labor and Industry, *fn1" no shoring had been placed along the sides of the trench to prevent a cave-in, with consequent danger to those working in and about the excavation. The evidence was sufficient to permit the jury to conclude that the fall of dirt which killed the decedent was proximately caused by the lack of shoring.

 Suit was brought against Upper Moreland Township, and Miles Potter, the township engineer, on the theory that the defendants were negligent in not requiring McCabe Brothers to install the shoring required by law. Jurisdiction was by diversity of citizenship. The defendants impleaded McCabe Brothers on theories of common-law and contractual indemnity.

 The jury returned a verdict of $ 35,000 in favor of the plaintiff against the defendants, and, in the third-party action, found in favor of the third-party defendants against the third-party plaintiffs. In other words, they denied defendants indemnity on either theory.

 The defendants-third party plaintiffs now move for judgment n.o.v. of for a new trial against both the plaintiff and the third-party defendants.

 'It is the general rule that the employer of an independent contractor is not responsible for the misconduct of the contractor while the latter is performing under the terms of the contract. * * * The rule is justified on the ground that since the employer does not control the work being performed, he should not be liable for the harm resulting from the substandard performance of the independent contractor. Following this line of reasoning, it is apparent that where the employer has retained some element of control of the job, he should be responsible for the harmful consequences of its performance as a concomitant of the control retained. The Pennsylvania courts have recognized that the employer should be liable where he has retained control of some part of the work, or so interfered with the performance of the job as to have assumed control, and his failure to exercise that control with reasonable care causes harm to others. * * * It is the jury's function to determine whether the employer retained control so as to make him liable.' Spinozzi Pennsylvania Threshermen & Farmers' Mut. Cas. Ins. Co., Intervenor v. E. J. Lavino & Co., 3 Cir., 1957, 243 F.2d 80, 82-83.

 Crucial to the jury's determination in this case was the question whether the Township had retained sufficient control of the excavation work to impose upon it the duty of complying with the Commonwealth regulations on shoring and the consequent liability for the results of failure to do so. The jury had before it the contract between the Township and McCabe Brothers, which gives the township engineer authority, inter alia, over 'the manner, performance, rate of progress * * * on the part of the Contractor.' The jury also heard testimony concerning the presence on the job of representatives of the Township and the extent to which they exercised control over the work.

 From the evidence, the jury apparently decided that the Township had retained sufficient control to make it liable for the absence of shoring. The jury also found defendant Potter, the township engineer, liable to the plaintiff.

 At this point we should like to dispose of the question of Potter's liability. The theory presented to the jury was that Mark Bradley, the engineer who represented the Township in supervising the work, was the agent of defendant Potter, the township engineer. As a matter of fact, however, Bradley was the employee of the engineering firm of Harris, Henry & Potter, Inc., which firm was designated as the township engineer under the written contract between the township and McCabe Brothers. Although Potter (vice-president of Harris, Henry & Potter, Inc.) held the official position of township engineer, he was not the Township's representative on this particular contract, nor was Bradley his agent. Therefore, while Bradley's negligence in failing to comply with the shoring requirement could be imputed to his employer, Harris, Henry & Potter, Inc., and to that firm's principal, the Township, it could not be imputed to defendant Potter. The evidence of Potter's personal involvement with the excavation operation is not sufficient to find him responsible for the lack of shoring. Accordingly, we will grant Potter's motion for judgment n.o.v. as to plaintiff.

 The most substantial arguments of the defendant Township are (1) that it was engaged in a governmental (as opposed to proprietary) function in the construction of the sewer and so enjoyed immunity from suit for damages arising therefrom; and (2) that the Court erred in charging that the township had a nondelegable duty to provide shoring for the trench.

 While there is some confusion in the Pennsylvania decisions as to which functions are governmental and which proprietary, *fn2" we feel that the construction of a sewer is a proprietary function, *fn3" and that accordingly no tort immunity attaches thereto.

 We turn now to the question of whether we erred in charging the jury that the township had a nondelegable duty to provide shoring for the trench.

 The Pennsylvania statute provides:

 'All * * * excavations * * * shall be properly shored * * * as to provide reasonable and adequate protection to workers employed therein.' 43 P.S. § 25-2(f).

 'The Department of Labor and Industry shall have the power and its duty shall be to make, alter, amend, and repeal rules and regulations for carrying into effect all the provisions of this act, and applying such provisions to specific conditions.' 43 P.S. § 25-12.

 Pursuant to the statutory mandate, the Department of Labor and Industry has issued safety regulations for trenches and excavations. The responsibility for compliance is placed 'upon both the employer and employe.' According to the regulations in force at the time of the accident in suit, the sides of this sewer trench should have been 'securely held by shoring and bracing.' *fn4"

 The jury was justified in finding that the accident was caused by failure to comply with this regulation. The question of whether or not the duty to insure compliance rested on the Township was presented by the Court to the jury in this manner:

 'Normally, the responsibility of providing this sort of safeguard where it is required would rest with the contractor doing the work; and the person for whom the work is being done -- the Township in this case -- is not responsible for the failure of the contractor to provide an adequate safeguard. This is because the contractor on a job like this is what we call an independent contractor, and that usually means that he is given the plans and specifications which he must follow, and then he does the job with his own employees in a manner that he feels is appropriate.

 'If it (shoring) was a responsibility, ladies and gentlemen of the jury, then I think it was also a responsibility of the municipality, the Township, because I think it could not be delegated and that if the contractor himself violated the law he and the Township would be jointly negligent. They would both contribute to the negligence in failing to observe the regulations with respect to that situation * * *

 'If you find that because of the circumstances that I have explained there was no necessity for shoring the trench, then the plaintiff cannot recover, and your verdict must be for the defendants.

 'If you determine that in the exercise of ordinary care the Township Engineer should have required the shoring of the trench or, in other words, that the Engineer was negligent in not requiring the shoring, then you will consider the question of whether that negligence was a proximate cause of the cave-in which brought about the unfortunate death of the decedent. There has not been much evidence on what caused the cave-in, but that is a question of fact, and the shoring itself is a question of fact, as I have pointed out, that you will have to determine.

 'If you determine that the Engineer's negligence in not requiring shoring was not a proximate cause of the cave-in and that the Township itself was not required to see that the shoring was put in place, then the plaintiff cannot recover, and your verdict must be for the defendants.

 'Let me say that in order to bring in a verdict for the plaintiff you will be obliged to ask yourselves the following questions and answer them 'Yes':

 'Under the contract did the Township retain enough control of the job performance in addition to the power of general supervision to impose upon the Township ...

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