The opinion of the court was delivered by: CAHN
Michael D. Woods was severely injured on January 18, 1973, while he was employed as a welder for Fisher Tank and Welding Co. Suit was brought against Swann Oil, Inc., Gypsum Development, Inc., Patterson Equipment Co., and J. E. Brenneman Co. to recover damages for the personal injuries he sustained.
Michael D. Woods later died from unrelated causes and his administratrix has been permitted to be substituted as one of the plaintiffs. Swann Oil, Inc., and Gypsum Development, Inc. (related companies hereinafter referred to as "Swann" and "Gypsum") filed a third-party complaint against plaintiff's employer, Fisher Tank and Welding Co. ("Fisher").
In the first part of a bifurcated trial, the jury imposed liability against Swann and Gypsum in regard to plaintiffs' claims, and also imposed liability against Fisher on the third-party claim. In the second phase of the bifurcated trial a jury awarded the plaintiffs damages in the amount of $125,000.
Fisher, at the time of the accident, was erecting a cylindrical steel oil storage tank on premises owned and/or controlled by Swann and Gypsum. The method used to erect this steel oil storage tank was to hoist into place the plates constituting the sides of the tank, temporarily securing them, and then affixing the steel plates in permanent position by welding. The circumference of the tank in question is approximately 465 feet. Each steel plate is thirty-one feet in length and eight feet high. Six levels of plates are installed, thus the height of the tank is forty-eight feet. Michael Woods was working, at the time of his accident, as a welder on the next to the last steel plate to be installed on the sixth level of the tank. He was positioned in what is known as a welding buggy. The welding buggy was attached to the top of the steel plate, which was not yet permanently welded. This buggy moves on rollers in a horizontal direction. The accident occurred when the steel plate fell, carrying the welding buggy, with the plaintiff inside, to the ground.
The plaintiffs rely on two separate theories. The first claim is founded on Restatement (Second) of Torts § 414, which provides as follows:
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.
Plaintiffs' second theory is premised on Restatement (Second) of Torts § 416, which provides as follows:
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
The liability phase of the case was submitted to the jury through the use of special interrogatories.
Both Swann and Gypsum and Fisher have moved for judgment notwithstanding the verdict or, in the alternative for a new trial. Neither Swann and Gypsum nor Fisher take issue with the jury's finding on the damage issue.
Swann and Gypsum's first contention is that plaintiffs failed to produce sufficient evidence to justify submission of their § 414 claim to the jury. Section 414 has been declared to be the law of the Commonwealth of Pennsylvania. Byrd v. Merwin, 456 Pa. 516, 317 A.2d 280 (1974). To come within the orbit of § 414, it is incumbent upon the plaintiffs to establish that Swann and Gypsum retained control of work to be performed by Fisher. This is a factual issue which has been properly left to the jury for its determination. While the proof of retention of control is far from overwhelming, a project engineer from Swann and Gypsum was at the site every day for a five month period, and he concerned himself with such matters as timetables and safety. Therefore, the jury has decided the control issue, and I am reluctant to interfere with their judgment on that point. However, § 414 imposes liability only if the controlling parties were negligent by failing to exercise the control they retained with reasonable care. There is simply no evidence in the record to support the contention of the plaintiffs that Swann and Gypsum were negligent in that regard, and, therefore, plaintiffs' verdict cannot stand under § 414.
Sections 416 and 427 recognize that there exists a vicarious liability on the part of an employer of an independent contractor, which imposes upon the former responsibility in damages for the negligence of the latter, regardless of the fault of the former.
For this vicarious liability to arise, it is first necessary that the independent contractor commit an act of negligence which causes plaintiff's injury. In this regard, the jury found that Fisher was negligent and that such negligence did cause Michael Woods' injury. The record contains sufficient evidence to justify the jury's conclusion, because plaintiffs' experts opined that the welding buggy was akin to a scaffold and that the Occupational Safety and Health Act regulations [ see 29 C.F.R. § 1926.452(27)] ...