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].
Taking all the evidence and the inferences derived therefrom in the light most favorable to the plaintiff, we find:
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 of harm to someone outside.
(b) Grannis agreed to and participated in the condition by his agreement to sever the building at this point and leave the former interior partition wall standing, unsupported, unbraced, untied and exposed to the weather.
There is no question under this evidence of the condition being created without Grannis' consent, which would require reasonable care after he knows or should know of it. Did Grannis realize or should he have realized that the wall involved an unreasonable risk of harm? In Pope v. Reading Company, 304 Pa. 326, 156 A. 106, 109 , the court held:
"A person in possession or control of a high stone wall at a place where others have a right to be is under obligation to have the wall inspected at reasonable intervals, and is chargeable with knowledge of its condition, unless its condition has suddenly changed and he has had no time in which to acquaint himself with this change."
There is no evidence that Grannis by himself or by some competent person acting for him had this inspection made. There is evidence that such an inspection, before the contractor next door entered upon the premises and began his work, would have revealed a dangerous condition. Grannis has a nondelegable duty to use reasonable care. The jury verdict is supported by evidence that he failed to use such care. In such case, involving a wall collapse, the Supreme Court of Pennsylvania, held:
"Defendant was charged with a nondelegable duty to use ordinary care to make her property reasonably safe. If her witnesses had been given full credit by the jury, a finding that she had satisfied the law's demand would have been sustained; but it was for the jury to decide. The jury found the wall to be defective and unsafe to remain standing without being properly braced or guarded. In so finding it decided that defendant had not performed her obligation of ordinary care under the circumstances, that those employed by her, either through lack of proper inspection, incompetency or misjudgment, failed to ascertain the true condition of the wall, as described by plaintiff's witnesses. This very important dispute in the evidence was submitted under proper instructions from the court." Fitzpatrick v. Penfield, 267 Pa. 564, 109 A. 653, 655 .