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September 18, 1981

AIRCO, INC. t/a Jackson Products and Irwin & Leighton Construction Co., Inc. t/a Hospital Constructors, R. M. Shoemaker Company, Inc., t/a Hospital Constructors, Thomas Jefferson University and Williard, Inc.

The opinion of the court was delivered by: DAVIS


The issues presented in this diversity action provide a framework for discussion of the well established Pennsylvania law relating to the interrelationship of building contractors and property owners, and their corresponding tort duties. Although well settled, the substantial litigation in this area of law belies the apparent clarity of its legal principles.

 Plaintiff James Sharkey was an employee of Williard, Inc., a sub-contracting firm engaged by the general contractor, Hospital Constructors, to perform mechanical and electrical work on a hospital under construction at 11th and Walnut Streets in Philadelphia. Thomas Jefferson University, the property owner, hired Hospital Constructors *fn1" to direct the construction project. On January 11, 1977, during the course of his employment with the sub-contractor, plaintiff sustained serious injuries from a relatively minor fall. Snow and ice had accumulated on the roof of the unfinished hospital building where plaintiff was engaged in the operation of loading equipment. The plaintiff and his co-workers cleared the snow and ice from areas of the roof, and piled it in mounds throughout the workplace to clear a path upon which a dolly could easily pass with equipment dropped by crane. While standing on one of these mounds of snow to avoid an oncoming dolly, plaintiff slipped and fell striking his head.

 Plaintiff, thereafter, filed suit against Airco, Inc., the manufacturer of the hard hat he wore, alleging that the product was defective and asserting claims in strict liability, negligence and breach of warranty. Airco, Inc., then instituted third party complaints against Thomas Jefferson and Hospital Constructors alleging that one or both owned, possessed, maintained and controlled the area where plaintiff's accident occurred and that plaintiff's injuries resulted solely from their negligence. Following a fourth party complaint against Williard, Inc. by the third party defendant, Thomas Jefferson, for indemnity and contribution and cross-claims among all defendants, Thomas Jefferson filed a motion for summary judgment.

 In its motion Thomas Jefferson asserts that under the undisputed facts, as an "employer of an independent contractor it is not liable for physical harm caused another by an act or omission of the contractor or his servants." Restatement of Torts, 2nd. ยง 409. *fn2" Plaintiff Sharkey and defendant Airco, Inc., however, invoke the exceptions to this general rule embodied in Sections 414 and 416 of the Restatement. *fn3" For the reasons which follow, the defendant Thomas Jefferson, is entitled to judgment as a matter of law under the aforementioned theories of liability; therefore summary judgment is granted. *fn4"


 The courts seem to have struggled to delineate the precise degree of retained control necessary to establish liability under this section. Distinguishing the degree of control necessary to establish an agency relationship and that necessary to impose Section 414 liability, Judge Adams has stated that although the operative details of the work activities are not determined by the general employer, retention of broad supervisory and operational authority for such activities may be sufficient under Section 414 to establish liability. See Gibson v. United States, 567 F.2d 1237, 1248 n.6 (3rd Cir. 1973), cert. denied, 436 U.S. 925, 98 S. Ct. 2819, 56 L. Ed. 2d 768 (1978) (Adams, J., concurring). Explaining the supervisory nature of control, Pennsylvania has adopted comment (c) of Restatement Section 414. This section makes clear that the scope of control must be over the manner in which the work is done. Hargrove v. Frommeyer & Co., 229 Pa.Super. 298, 310, 323 A.2d 300, 307 (1974); Celender v. Allegheny Co. San. Auth., 208 Pa.Super. 390, 395-96, 222 A.2d 461, 464 (1966). The right of supervision must evince that the " "contractor is not entirely free to do the work in his own way'." Id.

 In Celender, supra, the court held that a provision in a contract giving the employer the right to observe the fulfillment of safety requirements with the right to order them fulfilled if the contractor did not do so was not sufficient control to impose liability under Section 414. 208 Pa.Super. at 395, 222 A.2d at 463. Noting that the obligation to insure safety was imposed on the general contractor, the court stated that only when the contractor fails in the performance of his duty is the owner given the right to act. Id. Furthermore, the court indicated that the contractor had full authority in performance of the work prescribed by the contract, notwithstanding the presence of the defendant's engineer at the job site and his right with regard to the safety conditions.

 Celender seems to have been undermined to some degree by Byrd v. Merwin, 456 Pa. 516, 317 A.2d 280 (1974). Refusing to grant the defendant, property owner, judgment notwithstanding a verdict, the court held that the evidence of control was sufficient where the owner retained the power to direct the order of work; the owner hired the subcontractor rather than the general contractor; the owner paid the materialmen and the general contractor testified that he was second in command to the owner. Id. at 521, 317 A.2d at 282. Principally, the court relied on comment (a) of the Restatement and concluded that the power to mandate the order in which the work shall be done was sufficient control to invoke Section 414 when there was a nexus between the exercise of such power and the resultant safety defect. *fn6" Comment (a) also suggests that the power to forbid the work from being done in a manner likely to be dangerous to himself or others may be sufficient to invoke Section 414. Celender, however, classified this type of power reserved in the contract as only a general right of supervisory power. 209 Pa.Super. at 395, 222 A.2d at 464. Thus, there seems to be some inconsistency between the two cases.

 Discussing the distinction between the nature of control set forth in comment (a) and (c) of Restatement, the court in DiSalvatore v. United States, *fn7" 456 F. Supp. 1079 (E.D.Pa.1978) stated that the retained power discussed in comment (a) "can be characterized as retained power to direct how the work should be done, in distinction to control over the results of the work." Id. at 1082. This court further explained that the purpose of comment (c)

"is to insulate one employing an independent contractor from liability when the employer possesses only a general right to insure that the contractor is complying with the terms of the contract, that is, to oversee the results of the work. See Fisher v. U. S., 441 F.2d 1288 (3rd Cir. 1971). In contrast to the right to supervise the results of the work is the right of control over the conduct of the work at the construction site."

 Id. Thus, where the retained control is tantamount to reservation of the power to direct the manner in which the contractors produce the result, Section 414 is properly invoked. See Hurst v. Triad Shipping Co., 554 F.2d 1237, 1251 (3rd Cir.), cert. denied, 434 U.S. 861, 98 S. Ct. 188, 54 L. Ed. 2d 134 (1977).

 The plaintiff, Sharkey, and third-party plaintiff, Airco, Inc., primarily rely on four factors as indicia of control to invoke Section 414. These facts are as follows: (1) the contract allows Thomas Jefferson to change the work within the general scope of the contract. *fn8" (2) Thomas Jefferson set up and maintained an office for its construction representatives across from the job site; (3) these representatives visited the job site at least two or three times a week; (4) the representatives toured the entire job site, including the upper floor of the building under construction. *fn9" On these factual allegations, the ...

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