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ANGELO ORTIZ AND ILLUMINADA ORTIZ v. RA-EL DEVELOPMENT CORP. AND ARNKO BUILDERS (07/17/87)

filed: July 17, 1987.

ANGELO ORTIZ AND ILLUMINADA ORTIZ, APPELLANTS,
v.
RA-EL DEVELOPMENT CORP. AND ARNKO BUILDERS, INC., APPELLEES. ANGELO ORTIZ AND ILLUMINADA ORTIZ V. RA-EL DEVELOPMENT CORP. AND ARNKO BUILDERS, INC. APPEAL OF ARNKO BUILDERS, INC.



Appeal from the Order entered on April 9, 1986, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3320 September Term 82.

COUNSEL

Armin Feldman, Philadelphia, for appellants in No. 1205 and for appellees in No. 1385.

Elizabeth A. Berryman, Philadelphia, for appellant in No. 1385 and for appellee in No. 1205.

Lawrence L. Robinson, Philadelphia, for RA-EL, appellee.

Cavanaugh, McEwen and Beck, JJ. Cavanaugh, J., files concurring statement.

Author: Beck

[ 365 Pa. Super. Page 51]

Appellant Angelo Ortiz was a laborer in the employ of A-V Brick Corporation ("A-V"). He was injured on the job when a fourteen-foot high scaffold on which he was working collapsed. He was on the scaffold erecting masonry walls for a warehouse owned by appellee Ra-El Development Corporation ("Ra-El"). Ra-El contracted for the work with Arnko Builders, Inc. ("Arnko") as the general contractor. Arnko in return subcontracted with Ortiz's employer A-V.

Ortiz brought suit against Ra-El and Arnko, claiming that A-V was negligent in failing to assemble the scaffolding in accordance with standards promulgated by the Occupational Safety and Health Administration (OSHA); that his working on an improperly-assembled scaffold posed a "special danger" or "peculiar risk"; and that this risk was foreseeable by Ra-El and Arnko. He contends that Ra-El and Arnko should be held liable under the "peculiar risk" or "special danger" exception to the general rule that the employer of an independent contractor is not liable for the contractor's negligence.

The trial court found that no special danger or peculiar risk existed and granted Ra-El's motion for summary judgment. This appeal primarily reviews the dispute between Ra-El and Ortiz.*fn1 An order granting summary judgment in favor of one of several defendants is appealable as a final order. Ortiz's appeal is therefore properly before us. Lane v. Schacht, 260 Pa. Super. 68, 393 A.2d 1015 (1978).

[ 365 Pa. Super. Page 52]

Summary judgment will be granted only where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. On appeal from a grant of summary judgment, we review the record in the light most favorable to the losing party. Ibid. We find the trial court was correct in granting summary judgment in favor of Ra-El and we therefore affirm.

Under the facts of this case Ra-El is the employer of the independent contractor, A-V. As a general rule, "[t]he 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 ยง 409 (1965); Hader v. Coplay Cement Co., 410 Pa. 139, 189 A.2d 271 (1963). However, an exception to the general rule has developed where the work to be performed by the independent contractor involves special danger or peculiar risk.*fn2

The rationale underlying liability is that an employer of the independent contractor ought to anticipate a heightened level of risk where the work is specially dangerous or peculiarly risky. It is reasonable for the employer to take precautions or cause the independent contractor to take precautions to minimize the possibility of injury to others. After all, it is the employer who primarily benefits from the contractor's work and the employer who selects the independent contractor. Furthermore, the employer is in a position to make the selection of the independent contractor based on competency. The employer also may demand indemnity from the contractor. Finally, the ...


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