The opinion of the court was delivered by: WILLIAM W. CALDWELL
We are considering the Defendant's motion for summary judgment.
This action was instituted by Earl and Kay Zinn, husband and wife, as a result of an accident involving Earl Zinn on January 29, 1992. At the time of the accident, the Plaintiff
was an employee of Y/P Products, Inc. ("Y/P"). Y/P was hired by the Defendant, Gichner Systems Group ("Gichner"), to repair a hydraulic pump system at Gichner's plant. There was a rectangular opening in the floor in close proximity to the pump, which was attached to the top of a large machine. The opening was approximately six-feet deep, sixteen feet wide, and thirty feet long. Prior to the accident, Plaintiff requested that the Defendant's representative, David LeCates, provide safety nets or some other means of covering the opening. His request was denied. Additionally, the floor upon which Plaintiff was working was slippery due to the presence of sand and a substance applied by representatives of the Defendant. On January 29, 1992, while repairing the pump, the Plaintiff fell into the hole, sustaining serious injuries.
A. Standard for Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. " F.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In reviewing the evidence, facts and inferences must be viewed in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co., Ltd., et al v. Zenith Radio Corp., et al, 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986). Summary judgment must be entered in favor of the moving party "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).
When a moving party has carried his or her burden under Rule 56, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment", and cannot "simply reassert factually unsupported allegations contained in [the] pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (emphasis in original) (citation omitted). However, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986) (internal citations omitted).
It is well established in Pennsylvania that the owner of real estate is not liable, except in limited circumstances, to persons injured through the negligence of an independent contractor to whom possession and control of the land was temporarily delivered. See, e.g., Hader v. Coplay Cement Manuf. Co., 410 Pa. 139, 189 A.2d 271 (1963); Mentzer v. Ognibene, 408 Pa. Super. 578, 597 A.2d 604 (1991), alloc. denied, 530 Pa. 660, 609 A.2d 168 (1992); Ortiz v. Ra-El Development Corp., 365 Pa. Super. 48, 528 A.2d 1355 (1987), alloc. denied, 517 Pa. 608, 536 A.2d 1332 (1987). In Hader, the Supreme Court stated that
an owner of land who delivers temporary possession of a portion of the land to an independent contractor owes no duty to the employees of the independent contractor with respect to an obviously dangerous condition on that portion of the land in the possession of the contractor. . . . 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, 410 Pa. at 151, 189 A.2d at 277 (internal citations omitted); see also Restatement (Second) of Torts § 409 (1965). There are, however, exceptions to this general rule. First, the rule does not apply when the property owner "retains significant control over the work delegated to the contractor." Lorah v. Luppold Roofing Co., Inc. 424 Pa. Super. 439, 442, 622 A.2d 1383, 1384 (1993). The second exception is the "Peculiar Risk Doctrine", which is set forth in the Restatement (Second) of Torts §§ 416, 427.
1. Peculiar Risk Doctrine
Section 416 of the Restatement, entitled "Work Dangerous in Absence of Special Precautions", provides that:
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.
Restatement (Second) of Torts § 416. The other half of the Doctrine, entitled "Negligence as to Danger Inherent in Work", states that:
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 key to a proper application of these sections is the definition of "peculiar risk" and "special danger." Mentzer, 408 Pa. Super. at 590, 597 A.2d at 610. "Whether a peculiar risk exists is a matter for the court to decide before submission to the jury." Lorah 424 Pa. Super. at 446, 622 A.2d at 1386. Assuming the Defendant surrendered control of the property to its independent contractor (Y/P), we must determine whether the Plaintiff was faced with a peculiar risk or special danger in connection with his employment duties on Defendant's property. If not, he will not be entitled to recover from the Defendant.
In Ortiz v. Ra-El Development Corp., supra, the court held that a situation represents a peculiar risk or special danger if:
1) the risk is foreseeable to the employer of the independent contractor at the time the contract is executed, i.e., a reasonable person, in the position of the employer, would foresee the risk and recognize the need to take special measures; and
2) the risk is different from the usual and ordinary risk associated with the general type of work done, i.e., the specific project or task chosen by the employer involves ...