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Nardo v. City of Philadelphia

January 8, 2010

FRANK NARDO, APPELLANT
v.
CITY OF PHILADELPHIA



The opinion of the court was delivered by: Senior Judge Flaherty

Argued: November 9, 2009

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Appellant, Frank Nardo (Nardo) sued the City of Philadelphia, (City) for back injuries he sustained while working at a City owned golf course, while he was digging in a flower bed. At the time of Nardo's injury, Nardo was employed by the then current management company which operated and maintained the various golf courses owned by the City. Nardo filed suit for damages for personal injuries in the Court of Common Pleas of Philadelphia County (trial court). After trial, the jury found the City was not negligent. Nardo appeals the trial court's denial of his motion for post trial relief and argues that the trial court erred when charging the jury with respect to the City's responsibility for the acts of City's independent contractor who constructed the flower bed. City replies that Nardo failed to prove at trial any theory under which Nardo could recover from the City, including failure to prove recovery under any exception to the Political Subdivision Tort Claims Immunity Act (Act).*fn1 We affirm the trial court.*fn2

In 1985, the City, through its Fairmount Park Commission, ("Commission") owned and managed the Franklin Delano Roosevelt Golf Course (Course) in south Philadelphia.*fn3 City entered into a twenty-five year concession agreement ("Concession Agreement") with Philadelphia Golf, Inc. ("Concessionaire"), whereby The City maintained ownership of the courses and the Concessionaire was responsible to operate, manage and maintain, (either directly or through third parties) several City-owned golf courses.*fn4

On April 1, 2005, Liberty Golf Consulting, Inc. (Liberty), the employer of Nardo, entered into a one year management services agreement ("Management Agreement") with the City where the City paid Liberty to manage the courses (as opposed to the previous arrangement in the Concession Agreement where the concessionaire paid the City for the privilege of running the courses).

On November 28, 2005, Nardo was working as an irrigation technician at the Course. He was directed by his supervisor, a Liberty employee, to take a pick and shovel and dig a bed for some crocus bulbs in a garden in front of the clubhouse. While digging through a two inch layer of topsoil, his pick unexpectedly stuck in some fill containing chunks of concrete and asphalt that was under the topsoil. While trying to extract the pick, he suffered a serious back injury.

Nardo sued the City for negligence on the basis that the hidden rock fill was the proximate cause of his injuries, and that the City had superior knowledge of the hidden or other defects in the property. At trial, the Commission employee, who monitored the Course on behalf of the City at the time of the injury, testified that the garden had been previously constructed by an unknown independent contractor between 1985 and 1996 (while the City was under the Concession Agreement).*fn5 Nardo's expert testified that during the construction of the flowerbed, the soil was substandard for planting and should have been denied upon delivery or installation.

Under the Concession Agreement, Concessionaire agreed to provide funds to pay for repairs and capital improvements subject to the City's right to enter, inspect the work in progress and ascertain code compliance. (R.R. 381A). Upon completion, the improvements immediately became the property of the City. There was testimony that the City would oversee the work rather than supervise it and then, after it was completed, inspect it.

At trial, there was an issue regarding the legal status of Nardo at the time of the accident. Both parties submitted many points for charge that were discussed and ruled on at a conference prior to charging the jury. At the conclusion of the charge on liability, Nardo's proposed points on duty of care owed to invitees, definition of business invitee and independent contractor were read to the jury practically verbatim.*fn6 R.R. 507a-509a.

Nardo objected to City's points for charge numbered 36-39 (R.R. 597a - 600a) on the basis that the cases cited in support of those points involved owners who did not have possession and control of the real estate, which Nardo contends can be distinguished from the instant case where the City did have both possession and control of the realty. The trial court overruled Nardo's objections and charged on the points requested by the City in the following manner:

The City of Philadelphia may not be held liable for the negligent acts of its independent contractor, nor may the City be held liable for negligently supervising the contractor's work. [City's Point No. 36]. Ordinarily, one who engages an independent contractor to perform work on his property is not responsible for the acts of such independent contractor or his employees. [City's Point No. 37].

An owner of land who delivers temporary possession 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 land in the possession of the contractor. [City's Point no. 38]. 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 premises. [City's Point No. 39]. R.R. 510a, 511a. (Bracket citations added).

The first question on the verdict sheet read: "Was the City negligent?" The jury returned the answer, "No." Verdict was then rendered for the defendant, City, after which Nardo filed a Motion for Post Trial Relief. The City responded. Oral argument followed. The trial court denied Nardo's Motion for ...


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