The opinion of the court was delivered by: WEBER
This is a diversity negligence action for wrongful death under Pennsylvania law. Its difficulties arise out of an attempt to impose liabilities on third parties for the death of a workman where statutory liability has been placed upon the employer regardless of negligence on his part. The awards under such compensation acts are often considered inadequate, and less than can be realized in a suit based upon negligence tried before a jury. The beneficiaries of the deceased plaintiff risk nothing, because they are entitled to the statutory award; the employer or his insurance carrier is frequently a highly interested party because he may benefit from his subrogation rights to recover what he has been required to pay; and the counsel for the workman or his beneficiary is entitled to his fee by statute for any recovery that he has achieved on behalf of the employer, regardless of the extent to which his client has been benefited. The excess recovery over the compensation paid, goes to the employee or his beneficiaries. [77 P.S. § 671]. All this leads to highly complex theories of liability to hold third parties responsible, and frequently great confusion to the jury, which cannot be told and which is often unable to understand why a party shown by the evidence before them to be guilty of negligence which proximately caused the accident, is not before them. In the Federal Courts such employer is frequently joined as a third party defendant to protect rights of contribution or indemnity which the defendants may try to assert, although his liability has been fixed, determined and limited to that imposed by the Pennsylvania Workmen's Compensation Act. In this case, the employer, whose negligence was apparent, was not joined as a third party defendant, making the task of the jury more difficult.
The case arises from the collapse of a wall of a building in which a workman was killed. Plaintiff named as defendants Venango Federal Savings and Loan Association (herein called Venango), the owner of the site upon which the employer of the plaintiff's decedent was erecting a building; the owner of the adjoining building whose wall collapsed (herein identified collectively as Grannis); the architect employed by the owner of the construction site (Koerber); and a demolition contractor who had previously demolished the part of the former building on the construction site (Klapec and Sabol). The demolition contractor was exonerated by the verdict of the jury, which found liability against Venango, Grannis and Koerber. The decedent's employer, Bank Building and Equipment Corporation (herein called Bank Building) was not made a party to this action.
Liability is asserted against each defendant under a complex set of relationships between them.
An old building, known as the Exchange Hotel, stood at the intersection of Liberty and 13th Streets in Franklin, Pennsylvania. It was for sale. Robert Grannis, a lawyer, was interested in purchasing it but he didn't need the whole building. (For the purposes of this Opinion we will treat Grannis as one party under that name, although Mrs. Sarah Grannis became the owner of title and Robert Grannis, her husband, acted as her agent). Robert Grannis was also attorney for Venango in many of the transactions relevant herein. Venango became interested in a part of the building as a site for a new bank building which they were planning. Venango had engaged Bank Building as consultants in the planning, design and construction of the new building. Venango and Grannis came to an agreement to purchase the entire Exchange Hotel property, dividing it between them at a line marked by an interior masonry and brick partition wall. The decision to divide the property at this partition wall was made after consultation with and advice by Bank Building and the architect, Koerber, who had been engaged by Venango at the recommendation of Bank Building to prepare the plans for the new building.
The two sections of the Exchange Hotel were conveyed to Grannis and Venango, and Venango proceeded with the demolition of that portion of the building on its property adjoining the wall, which now became the exterior boundary wall of the Grannis property. Venango hired Klapec and Sabol by separate contract to demolish its part of the old building and clear away the site. The site was cleared down as far as the level of the basement of the old building. Klapec and Sabol then left the site. Some months later Bank Building entered upon the cleared site to begin construction of Venango's new building according to Koerber's plans. Although Koerber, under his contract with Venango, was responsible for design and general supervision, Venango did not contract with him for on-the-site supervision, thus failing to exercise an option in the architectural contract. Bank Building hired Grove, plaintiff's decedent, as a carpenter. Bank Building began to excavate for footers for the new building, which excavations extended below the floor level of the former building and below the foundation level of Grannis' adjoining wall. Bank Building sent Grannis a letter early in June 1965 telling him that they were beginning the work and would proceed with a minimum of disturbance to adjoining property, but not saying that they would actually invade the property line. It was intended that the adjoining wall of the new building of Venango would be a few inches away from Grannis' existing wall. On June 25, 1965, a Friday, Grannis was informed by a passer-by that Bank Building workmen were cutting a hole under the wall of his building. He then observed the excavation and saw that the workmen had made a cut into the earth under the stone footers of his wall about 18 inches deep and about 6-7 feet wide. Grannis went to Venango and inquired of one of its officers as to what was being done. This officer called Bank Building's superintendent and was assured that this was the proper procedure and was in accordance with the architect's plans, which called for the pouring of a concrete footer for the new Venango building which would also be a partial support for Grannis' adjoining wall. This assurance was conveyed to Grannis. On Monday, June 28, while Grannis was sitting in his office in the old building, the partition wall collapsed, killing Grove and heavily damaging Grannis' building.
The decedent, Grove, was preparing the forms for pouring the concrete footers. His remark to a co-worker indicated that he was aware of the danger in the procedure being undertaken, but that he was proceeding according to orders.
We are not here concerned with the weight or credibility of the evidence. These were matters for the jury. The question becomes one of whether there is evidence to support a finding of liability on the owners of these adjoining sites, and the architect, independent of the work that the contractor was doing. To determine that we shall examine the evidence as it applies to each defendant.
We have before us motions of each defendant found liable for new trial and for judgment n.o.v. We have also a motion for new trial by plaintiff limited to the issue of damages on the grounds that damages were inadequate, and a motion for new trial by plaintiff against defendants Klapec and Sabol.
DEFENDANT GRANNIS MOTION FOR JUDGMENT N.O.V.
Defendant Grannis opposes liability assessed to him on the grounds that he has no duty to the employee of an independent contractor who comes upon the property adjoining his, at the invitation of its owner, either to remedy a defect which the owner has discovered or in the ordinary process of performing work in the progress of which he was injured. Celender v. Allegheny County Sanitary Authority, 208 Pa.Super. 390, 222 A.2d 461 ; Peter v. Public Constructors, Inc., 368 F.2d 111 [3d Cir., 1966].
1. Grannis participated in the agreement to divide the old hotel building at the point of an interior wall, as a result of which the old interior wall became the exterior wall of his building.
2. Grannis maintained the remaining portion of the old building on his premises with an exterior wall which was unsafe to persons outside the premises from the moment of the demolition.
3. Grannis took no action to determine whether the exterior wall remaining on his property was safe.
4. Grannis took no action to strengthen, support or buttress the wall, either from the outside or from the inside.
5. Grannis left the old interior wall standing subject to exposure from the elements for several months during which its structure was deteriorating.
6. The workman who was killed was not an employee of Grannis, nor an employee of any contractor hired by Grannis to enter upon his property to correct any hazard connected with the wall or to do any work for Grannis in connection with the wall.
With respect to Grannis, plaintiff's decedent and his contractor were not connected with the demolition of the old building and the peril arising from the dangerously defective wall left standing on the Grannis property. This is an exception to the non-liability of the owner to employees of a contractor that was specifically pointed out in Harrison v. Blueberry Hill, 255 F.2d 730, 733-734; [3d Cir., 1958]:
"In the instant case, plaintiff and Key, his employer, were not connected in any way with the installation or inspection of the casement window which allegedly caused the injury."
Other cases cited by Grannis all refer to employees of the owner's contractor. There was no such relationship here between Grannis and Grove, the plaintiff's decedent.
Sword, Houston Fire & Cas. Ins. Co., Intervenor v. Gulf Oil Corporation, 251 F.2d 829 [5th Cir., 1958], involved the employee of a contractor with the owner. The Court found that the owner surrendered his control of the premises to the contractor, and is thus not liable.
Peter v. Public Constructors Inc., supra, involved non-liability of a general contractor for the death of the employee of a subcontractor on a bridge demolition job because the general contractor had reserved no right of control over the subcontractor's work.
Eastman Kodak Company v. Martin, 362 F.2d 684 [5th Cir., 1966], again involves non-liability of an owner to an independent contractor's employee who was brought on the premises of the owner to correct the very condition which caused the injury.
We have examined in detail the remaining cases cited by Grannis in support of his argument for non-liability as a matter of law. We do not dispute their general authority with respect to employers of contractors (owners) on the owner's property. Chapter 15 of the Restatement of Torts, 2nd, §§ 409-429, treats the subject "Employers of Contractors". Grannis was not the employer of a contractor. He is the owner of land. His liability is based upon Chapter 13 of the Restatement, Torts 2nd, §§ 328-387, and particularly under Topic 5 thereof, "Liability of Possessors to Persons Outside the Land". § 364 thereof was read verbatim and explained to the jury.
§ 364 is the law of Pennsylvania, McCarthy v. Ference, 358 Pa. 485, 58 A.2d 49, 53 . § 364 applies to this case under the plaintiff's evidence and the finding of the jury:
(a) There was a structure on Grannis's land which the owner should realize involved an unreasonable risk ...