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Paula (Livingston) Gresik, Individually and As Administratrix of the v. Pa Partners

December 1, 2011

PAULA (LIVINGSTON) GRESIK, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF GERALD LIVINGSTON, JR., APPELLANT
v.
PA PARTNERS, L.P., APPELLEE JOSEPH L. BELTOWSKI AND KAREN M. BELTOWSKI, HIS WIFE, APPELLANTS
v.
PA PARTNERS, L.P., APPELLEE



Appeal from the Order of the Superior Court entered December 24, 2009 at No. 1462 WDA 2008, affirming the Order of the Court of Common Pleas of Somerset County entered August 1, 2008 at 325 Civil 1996. Appeal from the Order of the Superior Court entered December 24, 2009 at No. 1463 WDA 2008, affirming the Order of the Court of Common Pleas of Somerset County entered August 1, 2008 at 326 Civil 1996.

The opinion of the court was delivered by: Mr. Justice Saylor

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

ARGUED: April 12, 2011

OPINION

This case involves whether the Superior Court properly interpreted and applied Section 385 of the Second Restatement of Torts, which relates to the liability of a contractor or employee who creates a dangerous condition on land on behalf of the land's possessor.

According to the plaintiffs' allegations, between 1983 and 1988, Appellee, PA Partners, L.P., possessed and operated a steel plant in Hollsopple, Somerset County.*fn1

In 1984, PA Partners adapted the plant to produce steel ingots by, inter alia, thinning the firebrick lining on the sides and bottom of the plant's electric furnaces and increasing the voltage used to melt the materials placed inside the furnaces. After these modifications, the plant experienced multiple "burn-through" incidents, meaning that molten steel burned through the firebrick lining and shell wall of a furnace. In each instance, the molten steel escaping from the furnace ruptured nearby water lines, causing a steam explosion. The explosion, in turn, caused steam and debris to spew onto the pouring platform where furnace operators were working. During one such incident, a worker escaped from the pouring platform via an "access drawbridge" connecting the platform with other parts of the facility. PA Partners eventually removed the drawbridge to improve operation of the plant's overhead cranes. It did not, however, take steps either to provide an alternate means of escape from the platform, or to shield the water lines from damage in the event of a burn-through.

In late 1988, PA Partners sold the steel mill to First Mississippi Steel, Inc. ("FMS"), in a "turn-key" transaction -- i.e., FMS retained all of the facility's personnel, including its management, and operated it in the same manner as before. Notably, the mill's physical plant was not substantially altered, meaning that the access drawbridge was not replaced and the water lines remained unshielded.

Nearly six years later, in June 1994, Gerald Livingston and Joseph Beltowski, employees of FMS, were operating one of the furnaces when a burn-through and a series of steam explosions occurred. During the incident, hot steel fragments and parts of the plant structure fell onto the pouring platform and struck Livingston and Beltowski. Livingston was fatally injured and died three days later. Beltowski was seriously injured, but survived with scarring and disfigurement.

Appellants, Paula Jean Livingston (now Paula Livingston Gresik) and Joseph and Karen Beltowski, filed civil actions against numerous parties, including PA Partners, for damages arising out of the accident. The complaints sought relief primarily under theories relating to liability imposed upon the vendor of property, as well as contractors and engineers who create a dangerous condition on land.*fn2 Several years of litigation ensued, and the common pleas court dismissed some of the claims on preliminary objections in the nature of a demurrer. Eventually, PA Partners remained as the only defendant in the suit. After further pleadings and discovery, the court granted PA Partners' motion for summary judgment on the sole remaining cause of action.*fn3

Appellants appealed to the Superior Court, with PA Partners as the only named appellee. Appellants challenged, among other things, the common pleas court's order sustaining PA Partners' preliminary objections in the nature of a demurrer. Appellants highlighted that a demurrer may only be sustained when it is clear that there can be no recovery under any theory based on the facts alleged. In this respect, they maintained that the common pleas court had failed to recognize that PA Partners could be held liable under a theory of negligent construction described in Section 385 of the Second Restatement of Torts, as follows:

One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.

RESTATEMENT (SECOND) TORTS

ยง385 (1965). Appellants contended that the removal of the access drawbridge created a danger, and hence, could have been found to constitute negligent ...


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