The Court finds that Farmers was a landlord out of possession of bin 8 at the time of the accident. Therefore, the general rule of no liability for such landlords for harm to the business invitees of their lessees applies. None of the four recognized exceptions to this general rule are applicable to the facts of the case.
While the above discussion of Pennsylvania law relating to control fails to impose liability on Farmers for plaintiff's injuries, the following analysis supports the conclusion that Energy is at least partially liable.
III. The Liability of Energy
In Pennsylvania, a possessor of land who retains control over the work of an independent contractor is liable for the harm caused by his failure to use reasonable care in exercising such control. See Crane v. I.T.E. Circuit Breaker Company, 443 Pa. 442, 278 A.2d 362 (1971). See also Quinones v. Township of Upper Moreland, 293 F.2d 237 (3d Cir. 1961). The record reflects that Energy retained substantial control over Highgate. As discussed above, Energy selected and paid the independent contractor for all work performed on bin 8. William Jacuk, general foreman and estimator for Highgate, testified that in a conversation between Gibbs, Caltabiano, and himself, the men decided that Caltabiano would take orders from Gibbs. See R.T. 93. Gibbs went into detail with Caltabiano concerning the manner in which the welding was to be performed in the bin, and even ordered him to do various other jobs on the side. See Caltabiano Deposition at 66, 68, 73. From this evidence, the Court concludes that Energy retained enough control over Highgate's work to trigger its liability for failure to use reasonable care in the exercise of its control.
Alan Gibbs was experienced in the conversion of graineries to coal-handling facilities. He was also knowledgeable of the procedures required for safe welding. Furthermore, he acknowledges the fact that he was aware that Caltabiano was going to weld on the day of the accident. See R.T. 177. Gibbs knew that an asbestos cloth was necessary to prevent a welding torch from igniting a substance such as the grain dust in the bin. In fact, he ordered that such a cloth be used for welding in an unrelated project that took place before the accident at issue. See R.T. 177. Gibbs further testified to knowing that Caltabiano was working without such an asbestos cloth on the day of the accident. See R.T. 178.
While Mr. Gibbs acknowledges his expertise and awareness as detailed above, he denies having ever reported to either Caltabiano or Jacuk that it was safe to weld in bin 8. See R.T. 181-182. Energy accordingly contends that it cannot be held responsible for negligently controlling the work-site. However, there exists ample testimony from Jacuk and Caltabiano to conclude that Gibbs did in fact advise them that it was safe to work in the bin. William Jacuk testified that Gibbs declared on several occasions that it was safe to work in bin 8. See R.T. 95, 117. Plaintiff Caltabiano likewise contends that Gibbs advised that it was safe. See Caltabiano Deposition at 117.
To resolve this conflict in testimony, the Court has assessed the credibility of the witness, Alan Gibbs, an interested party to this litigation. His testimony as described above is contradicted by the testimony of William Jacuk and Mario Caltabiano. The Court is not persuaded by the account given by Mr. Gibbs and regards the statements made by Jacuk and Caltabiano as accurate depictions of the events that took place before the accident. Mr. Gibbs' account of the events at issue is inconsistent with his unquestioned technical knowledge and the role he played for Energy in effecting the proposed conversion. However, the Court's decision to reject in part the testimony of Mr. Gibbs is also based on intangibles such as Gibbs' demeanor at trial and other like things.
Because of Gibbs' knowledge of and actions taken with respect to the welding conducted in bin 8, this Court finds Energy liable in part for the injuries suffered by Caltabiano for failing to use reasonable care in exercising control over the conversion work done by Highgate.
The exact apportionment of damages will be delineated later in this opinion.
IV. Good Samaritan Theory
The Pennsylvania law concerning the good samaritan theory is codified in the Restatement of Torts (Second), Section 324A. See Santillo v. Chambersburg Engineering Co., 603 F. Supp. 211 (E.D. Pa. 1985). See also Cantwell v. Allegheny County, Pa., 506 Pa. 35, 483 A.2d 1350 (1984). Section 324A provides that:
One who undertakes, gratuitously or for a consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking if: