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Samuel L. Wombacher and Lisa Wombacher, His Wife v. Greater Johnstown School District

May 3, 2011

SAMUEL L. WOMBACHER AND LISA WOMBACHER, HIS WIFE, APPELLANTS
v.
GREATER JOHNSTOWN SCHOOL DISTRICT



The opinion of the court was delivered by: Dan Pellegrini, Judge

Argued: April 4, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE PELLEGRINI

Samuel L. Wombacher (Mr. Wombacher) and Lisa Wombacher, his wife (together, the Wombachers), appeal from an order of the Court of Common Pleas of Cambria County (trial court) granting the motion for summary judgment filed by the Greater Johnstown School District (District) because the District did not owe Mr. Wombacher a duty of care. Finding no error in the trial court's opinion, we affirm.

The uncontested facts as gleaned from the pleadings are as follows. The District contracted with Charter Communications to install, operate and maintain all cable, electronics, material and equipment at its administration building. Charter Communications then subcontracted with Tel-Power, Inc. (Tel- Power) to do the actual installation of the fiber optic cable. Mr. Wombacher was employed by Tel-Power as a lineman. On October 17, 2002, Mr. Wombacher arrived at the District's administration building to complete the installation and inspected the back of the structure. No one from the District accompanied Mr. Wombacher during the investigation of the outside of the building or specified where the cable should be attached. Mr. Wombacher and Jerry Adams (Mr. Adams), a supervisor for Charter Communications who was present at the scene, both decided to attach the cable to a pre-existing metal bracket, typically used for such cable installation, which was located on one of the brick columns of the building. Mr. Wombacher climbed a ladder, which he had propped alongside the column, but when he tightened the cable, the top of the column gave way. Mr. Wombacher fell approximately 10 to 14 feet onto the ground, and a large piece of the column landed on him causing various injuries including a compound fracture of his left tibia and fibula. Apparently, the column gave way because it was not actually attached or tied into the structure, but was merely a facade.

The Wombachers filed a civil action against the District claiming it was negligent and breached its duty of care to Mr. Wombacher as a contractor by failing to warn him or his supervisors of the danger posed by the defective column. The District filed an answer with new matter claiming the cause of action was barred by the provisions of the Political Subdivisions Tort Act, 42 Pa. C.S. §§8541 - 8550. The District then filed a motion for summary judgment arguing it was not liable because it turned the work over to a competent contractor who was in a better position to discover the non-obvious defect and should have warned its own employees. In addition, the District also asserted that it was not aware that the brick column would collapse under these circumstances; that Mr. Wombacher failed to offer any evidence that a reasonable inspection of the building would have revealed the latent defect; that Mr. Wombacher did not consult with anyone from the District to determine how or where the cable should be installed; that Mr. Wombacher used his employer's equipment to complete the work; and that no one from the District was present during the installation or was even aware that Mr. Wombacher was working on the back of the building at that time.

The trial court, sitting en banc, granted the District's motion. The trial court noted that Pennsylvania law "generally insulates property owners from liability for the negligence of independent contractors and places responsibility for the protection of the contractor's employees on the contractor and the employees themselves." Warnick v. The Home Depot U.S.A., Inc., 516 F. Supp. 2d 459, 466 (E.D. Pa. 2007) (quoting Gutteridge v. A.P. Green Servs., Inc., 804 A.2d 643, 656 (Pa. Super. 2002)). According to the trial court, there were only two exceptions to this general rule - if the landowner maintained control over the means and methods of the contractor's work or if the work being performed involved a peculiar risk. Warnick, 516 F. Supp. 2d at 467 (citing Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa. 46, 911 A.2d 1264 (2006)). However, the District was unaware of the defect and did not have control over the means and methods of Tel- Power's work. Because neither of the two exceptions was met, the trial court held that the District owed no duty to Tel-Power, the subcontractor.

On appeal,*fn1 the Wombachers argue that the trial court erred in finding that the District had no duty to inform Mr. Wombacher or Tel-Power of the dangerous condition on its property because the condition was not obvious to Mr. Wombacher and the District knew or should have known of the condition through a reasonable inspection. We disagree.

As in any negligence case, the mere fact that an accident occurred does not entitle the Wombachers to a verdict. Gutteridge, 804 A.2d at 655. Rather, they must demonstrate that the District owed Mr. Wombacher a duty of care and that this duty was breached. Id. Whether or not a landowner owes a duty of care to someone who enters upon the land, and what the appropriate standard of care is, depends upon the classification of the entrant - whether he or she is a trespasser, licensee or invitee. Carrender v. Fitterer, 503 Pa. 178, 184, 469 A.2d 120, 123 (1983). Employees of independent contractors are considered invitees who fall within the classification of business visitors. Gutteridge, 804 A.2d at 655. Regarding a landowner's duty to invitees, Pennsylvania has adopted Section 343 of the Restatement (Second) of Torts, which states:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Restatement (Second) of Torts ยง343; see also Carrender, 503 Pa. at 185, 469 A.2d at 123. Pennsylvania courts have interpreted ...


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