No. 239 and 241 March Term, 1977, No. 240 and 242 March Term, 1977, Appeals from the orders of the Superior Court granting United States Steel Corporation's motions for a new trial and denying motions for j.n.o.v. at Nos. 656 and 657 April Term, 1975, from the Judgments of the Court of Common Pleas, Civil Division, of Allegheny County at Nos. 375 January Term, 1972 and 2811 January Term, 1973.
Richard D. Gilardi, Gilardi & Cooper, Pittsburgh, for appellant at Nos. 239 & 240 and appellees at Nos. 241 & 242.
Paul A. Manion, Reed, Smith, Shaw & McClay, Pittsburgh, for appellees at Nos. 239 & 240 and appellant at Nos. 241 & 242.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, and Manderino, JJ. Pomeroy, former J., did not participate in the decision of this case. Larsen, J., did not participate in the consideration or decision of this case. Nix, J., filed a dissenting opinion and would direct the trial court to grant U.s. Steel judgment n. o. v. Manderino, J., filed a dissenting opinion and would direct the trial court to reinstate plaintiffs' verdicts.
Cases involving less than two of the exceptions to the general rule that "the employer of an independent contractor is not liable for physical harm caused to another by an
act or omission of the contractor or his servants," Restatement (Second) of Torts § 409 (1965), are, in the words of Dean Prosser, "comparatively rare."*fn1 By Dean Prosser's standard, this is not a rare case.
United States Steel Corporation hired an independent contractor, Edward Gray Corporation, to "tear out" deteriorating bricks inside the Number 4 blast furnace at U.S. Steel's Duquesne plant. One Gray employee, Vincent Cardillo, was injured and another Gray employee, Candido Gonzalez, was killed in an accident on the job site. Cardillo and the administratrix of the estate of Gonzalez filed separate complaints against U.S. Steel in the Court of Common Pleas of Allegheny County. Cardillo alleged U.S. Steel's negligence caused his injury, and the administratrix claimed U.S. Steel's negligence caused Gonzalez's death. U.S. Steel denied each plaintiff's allegations of negligence and joined Gray as an additional defendant in each case. The court of common pleas consolidated the cases and the parties presented their evidence to a jury. The jury returned verdicts in favor of plaintiffs, and against both U.S. Steel and Gray. The court of common pleas denied U.S. Steel's motions for judgment notwithstanding the verdicts and for a new trial. (Gray did not challenge the jury's verdicts.) U.S. Steel appealed to the Superior Court. The Superior Court unanimously upheld the denial of U.S. Steel's motions for judgment n. o. v., and a majority granted U.S. Steel a new trial. Both U.S. Steel and plaintiffs petitioned for allowance of appeal, and this Court granted both petitions.*fn2
The Duquesne plant's Number 4 blast furnace has four stoves as components. Each stove is approximately 110 feet high and cylindrical. Inside each stove are two adjacent vertical chambers of different widths. The wider of the
two, known as the "checker chamber," is lined with special, heat-retaining "checker bricks." The other chamber, the "well," is lined with a material called "skimwall." Persons may enter the bottom of the well through one of two hatches.
U.S. Steel hired Gray to tear out, from the Number 4 blast furnace stoves, "approximately ten feet" of deteriorating checker bricks at the top of each checker chamber and twenty feet of deteriorating skimwall at the bottom of each well. Gray specialized in brick removal and was not hired to install new bricks. U.S. Steel and Gray signed a contract supplied by U.S. Steel which contains a printed provision that "[t]he safety of all persons employed by contractor . . . shall be the sole responsibility of contractor" and a provision that "[c]ontractor shall take all reasonable measures and precautions at all times to prevent injuries to or the death of any of his employees . . . ." The contract incorporates several sets of "owner's specifications." One set includes a typed clause stating that "[t]he contractor shall provide and maintain all required barricades, planks, handrails, lanterns, warning signs and everything necessary for the safe and proper conduct of the work and for the protection of all equipment, property, Contractor's employees, Purchaser's employees and all other equipment." Another set contains a typed clause stating that "[c]ontractor shall equip work covered by this contract with all proper safety devices for the protection of workmen. . . ."
U.S. Steel shut down the furnace and Gray began work on the stoves. In the Number 3 stove, as in the others, Gray first tore out checker bricks from the top of the chamber and then threw the bricks into the adjacent well. Discarded bricks accumulated at the bottom of the well. Gray workers entered the well through a hatch and carted out the discarded bricks. Gray removed approximately ten feet of bricks from the top of the checker chamber of the Number 3 stove. It then shifted its efforts to the skimwall at the bottom of the well. Before removing any skimwall, Gray installed scaffolding to support skimwall that would not be removed. Gray then removed about twenty feet of skimwall.
Another contractor, Pittsburgh Pipe, had been hired by U.S. Steel to "rod" the checker bricks remaining in each of the four stoves.*fn3 Checker bricks are "rodded" by inserting steel rods in the holes of checker bricks at the bottom of the chamber and driving the rods by machine up through remaining checker bricks. The steel rods clear the brick holes of accumulated materials. If rods cannot be driven through all the remaining checker bricks, it becomes necessary to tear out additional checker bricks.
After Pittsburgh Pipe rodded the remaining checker bricks in the Number 3 stove, it was determined that Gray would have to remove more checker bricks. In order to remove more checker bricks at this stage of the work, an eighty foot wooden chute was installed in the well to funnel discarded checker bricks away from both remaining skimwall and its temporary supporting structure. U.S. Steel directed Gray "as to the amount of checker bricks to be torn out of the No. 3 stove after the initial ten feet of checker bricks had been torn out."*fn4 As Gray removed the additional bricks, torn out bricks accumulated at the bottom of the well, causing the bottom of the eighty foot chute to become embedded in checker bricks.
To permit additional accumulation of discarded checker brick, Gray ordered its employees to dismantle the bottom portion of the chute. Cardillo and Gonzalez entered the well to do so. They partially dismantled the bottom portion of the chute and discovered that the upper portion of the chute was clogged with discarded bricks. The chute collapsed, killing Gonzalez and injuring Cardillo.
Plaintiffs presented evidence in support of two theories of liability under the Restatement (Second) of Torts §§ 410 and 413, two exceptions to the general rule of Section 409. In support of their theory of liability under Section 410, plaintiffs argued that U.S. Steel negligently ordered dangerous
tear out work.*fn5 On their theory under Section 413, plaintiffs argued that U.S. Steel took inadequate special precautions to protect plaintiffs from the peculiar unreasonable risks of harm inherent in non-negligently performed tear out work.*fn6 Section 410 and Section 413 differ in that Section 410 addresses liability where the employer is negligent in the orders he gives the independent contractor, while Section 413 imposes liability where an employer fails to provide for the taking of special precautions against "peculiar unreasonable risks," created irrespective of negligence. Section 413
"is concerned with special risks, peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, against which a reasonable man would recognize the necessity of taking special precautions. The situation is one in which a risk is created which is not a normal, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity, arising out of the particular situation created, and calling for special precautions. 'Peculiar' does not mean that the risk must be one which is abnormal to the type of work done or that it must be an abnormally great risk. It has reference only
to a special, recognizable danger arising out of the work itself."
The court of common pleas denied U.S. Steel's motion for a directed verdict and charged the jury on Section 410 and 413.*fn7 First the court quoted the rule of Section 410.*fn8 Next the court instructed that "[o]ne who employs an independent contractor to do work which the employer should recognize is likely to create, during its progress, a peculiar unreasonable risk of physical harm to others, unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer fails to exercise reasonable care to provide in some other manner for the taking of such precautions." Unlike the first part of the charge, the charge on Section 413 did not mirror the Restatement. The court withdrew from the jury's consideration whether U.S. Steel "fail[ed] to provide in the contract that the contractor shall take [special precautions against a peculiar unreasonable risk of physical harm]." See Section 413(a), supra note 6. Over U.S. Steel's objection, the court did not instruct on Section 413(a) because it viewed the question as one for the court, rather than the jury. See generally Robert A. Felte, ...