The opinion of the court was delivered by: BECHTLE
This is a tort action in diversity. A jury trial commenced on December 5, 1983, but at the conclusion of plaintiffs' case the following day the court granted defendants' motion for a directed verdict. Presently before the court is plaintiffs' motion for a new trial. As explained below the motion will be denied.
Plaintiffs, John and Susan Marshall, filed the present negligence suit against the City of Philadelphia and Southeastern Pennsylvania Transportation Authority ("SEPTA"), for injuries sustained by John Marshall (hereinafter "plaintiff"), on July 21, 1982, while he was working at the SEPTA train depot located at 11th and Nedro Streets in Philadelphia. This depot is owned by the City and used by SEPTA. At the time of his accident, plaintiff was an employee of United States Steel Corporation ("U.S. Steel"), an independent contractor hired by the City to replace certain fences on selected City properties. Plaintiff, a fence installer with several years' experience, had been assigned by U.S. Steel to do some of this work.
On the day of the accident, plaintiff, a co-worker, Don Diamond, and their foreman, Benjamin Vermillion, undertook the task of removing four 800 pound cast iron gate sections that formed the halves of two swinging gates located over a roadway. The gates, which were located on a hill, were mounted on posts that were embedded in the ground. What the best method for removal would be had been the subject of a discussion among the crew the previous day. Present at this discussion, along with Vermillion, Diamond and plaintiff, was Tony Ricciardi, an inspector employed by the City of Philadelphia who worked on location to ensure that U.S. Steel completed the work as specified by the City. A general consensus was reached among the group that heavy equipment, possibly a forklift, would be needed to move the gates. Plaintiff believes it may have been Vermillion who first suggested the forklift.
In any event, on the morning of July 21, 1982, a forklift was not immediately available. Vermillion decided to proceed without the forklift by using in its stead the pickup truck that he had driven to the depot that day. Affixed to the rear of this truck was a frame or rack made out of pipe. Under Vermillion's direction, the gates were removed one by one by backing the truck up flat against the individual gate and then attaching the gate to the rear of the truck with three cable devices. These devices had ratchet pulleys which could be worked to create and maintain the tension necessary to hold the gate firmly against the truck. Two of these devices, referred to as come-a-longs, were used to secure the bottom corners of the outer edge of the gate to each side of the pick-up truck. The third device was to be attached somewhere near the middle of the top portion of the gate and this was secured to the truck's pipe rack. Once the gate was secured, it was knocked loose from its post by a sledgehammer, and then the truck would drag it a short distance away for later disposal.
Vermillion, Diamond, and plaintiff removed two of the gate sections without incident using this process. While the third section was being removed, however, two of the come-a-longs snapped. One of the come-a-longs was able to be repaired, the other was not. As a result, there were only two come-a-longs available for use in removing the fourth gate. Despite this reduction in equipment Vermillion decided to go forward with the job. He directed the men to attach the two remaining come-a-longs to each of the bottom sides of the gate. Consequently, and contrary to previous procedure, the top of the fourth gate was not restrained in any way. Plaintiff testified that some effort was made to try to find either a piece of cable or something else to secure the top but that Vermillion declared that too much time was being spent in the search and that the process should go forward without a top restraint. Plaintiff also testified that Vermillion decided to pull this particular gate up the hill, rather than down the hill as with the previous sections. This meant that the truck was angled upward and the weight of the fourth gate was pulling away from the back of the truck, rather than leaning toward it as with the other sections.
During the final positioning of this fourth gate section, plaintiff's co-worker, Diamond, was in the bed of the truck working with a crowbar to keep the lower portion of the gate free from a trailer hitch on the lower rear of the truck. Vermillion ordered plaintiff to assist in securing the right side of the lower corner of the fence to the passenger side of the pick-up, while Vermillion himself worked on the left side. After the come-a-longs were attached, Vermillion then ordered plaintiff to assist Diamond in keeping the gate from becoming caught on the truck's trailer hitch. This required plaintiff to position himself near the ground in the center of both the gate and the back of the truck. Unfortunately, but not unexpectedly, while the men worked with a sledgehammer to loosen the gate from the steel post which had formerly held it in place, the top of the gate responded both to the movement and to the force of gravity and came crashing down on plaintiff causing severe injury to his shoulder and back.
At the trial, plaintiff testified that while the fourth gate was being moved, Tony Ricciardi (defendant's employee) was standing approximately six to eight feet away, watching the whole process. Ricciardi's only involvement in the entire operation was his questioning of Vermillion as to whether the repaired come-a-long would hold, and his inquiry into the possibility of finding something else to secure the top of the fourth gate in view of the broken third come-a-long. Testimony was also adduced that when plaintiff first arrived at the job site the morning of the accident, he was working by himself removing the electric gate operators from the gates. Ricciardi came by and the two men talked as plaintiff continued to work. During the conversation, the electric wires sparked and Ricciardi told plaintiff to "hold off a minute" while Ricciardi went to try and turn off the electricity. When Ricciardi came back plaintiff tested the wires but they were still live. By agreement plaintiff and Ricciardi determined not to proceed further until someone could be found who knew how to shut off the electricity. Aside from this, there was no evidence that Ricciardi participated in the work, or was involved in any way in the decisions relating to its performance, including the placement of the employees, the handling or positioning of the come-a-longs, or even the position of the truck itself. Indeed Ricciardi, as an inspector for the City, was simply in and about the premises generally, and he never gave any orders or commands of any kind.
Upon completion of plaintiffs' case defendant SEPTA moved under Rule 50 for a directed verdict in its favor. Plaintiffs conceded that SEPTA's motion should be granted and it was so granted by the court. The defendant City of Philadelphia also moved for a directed verdict under Rule 50 and after oral argument and a discussion of the applicable legal principles, this motion was also granted.
During the oral argument on defendant's motion, plaintiffs took the position that even though U.S. Steel was an independent contractor, a case had been made out against the City of Philadelphia under the peculiar risk of harm doctrine embodied in sections 414 and 427 of the Restatement (Second) of Torts. Plaintiffs argued that a peculiar risk situation was created by the manner in which the gate was moved, and that the City of Philadelphia was vicariously liable because through the presence of its employee, Ricciardi, it was aware of that risk. The court concluded, however, that the circumstances presented by the present case did not fall within the type of situation contemplated by the peculiar risk sections of the Restatement. On this basis the court granted the Rule 50 motion in favor of the City of Philadelphia.
A. Peculiar Risk Doctrine - Sections 416 and 427
As a general rule, the employer of an independent contractor is not liable for physical harm caused another by an act or omission of the contractor or his servants. Hader v. Coplay Cement Co., 410 Pa. 139, 189 A.2d 271 (1963); Gonzalez v. U.S. Steel Corp., 248 Pa. Super. 95, 1007, 374 A.2d 1334, 1340 (1977), aff'd 484 Pa. 277, 398 A.2d 1378 (1979); McDonough v. U.S. Steel Corp., 228 Pa.Super. 268, 273-74, 324 A.2d 542, 545 (1974). See Restatement (Second) of Torts § 409. An independent contractor is in possession of the necessary area occupied by the work contemplated under the contract and his responsibility replaces that of the owner who is, during the performance of the work by the contractor, out of possession and without control over the work or the premises. Hader v. Coplay Cement Co., 410 Pa. at 151, 189 A.2d at 277.
Plaintiffs invoke the exception to the general rule found in sections 416 and 427 of the Restatement (Second) of Torts (1965). These sections provide as follows:
§ 416. Work Dangerous in Absence of Special Precautions
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.
§ 427. Negligence as to Danger Inherent in the Work
One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger.
The inherently dangerous activity doctrine of sections 416 and 427
is an exception to the general rule regarding an employer's nonliability for injuries caused by the independent contractor's negligence. The doctrine imposes vicarious or respondeat superior liability on the employer based on the nature of the task and the dangers inherent in the work unless special precautions are taken. Sharkey v. Airco, Inc., 522 F. Supp. 646, 653 (E.D. Pa. 1981), aff'd mem., 688 F.2d 824 (3d Cir. 1982).
Thus, in Pennsylvania employers may be liable vicariously for the negligence of an independent contractor, irrespective of whether the employer has himself been at fault. Gibson v. U.S., supra, 567 F.2d at 1244; Toole v. U.S., supra, 443 F. Supp. at 407. The requirements for application of Section 416 are (1) the independent contractor must commit an act of negligence which causes the plaintiff's injuries and (2) the work must involve a peculiar risk of harm requiring that special ...