§ 427 Negligence as to Danger Inherent in the Work
One who employs an independent contractor to do work involving a special danger to others which the employer know s 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.
Restatement (Second) of Torts, §§ 416, 427 (1965) (emphasis added).
Accordingly, a peculiar risk exists under the following circumstances.
(1) [ When] a risk is foreseeable to the employer of an independent contractor at the time the contract is executed (that is, if 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 (that is, the specific project or task chosen by the employer involves circumstances that are substantially out-of-the ordinary).
Gutteridge, supra at 656-657 (emphasis added), citing Ortiz v. Ra-El Dev. Corp., 528 A.2d 1355, 1358 (Pa.Super. 1987).
In order for the [ peculiar risk exception] to apply, it is not essential that the work which the contractor is employed to do be in itself an extra-hazardous or abnormally dangerous activity, or that it involve a very high degree of risk to those in the vicinity. It is sufficient t hat it is likely t o involve a peculiar risk of physical harm unless special precautions are taken, even though the risk is not abnormally great. … It is not essential that the peculiar risk be one which will necessarily and inevitably arise in the course of the work, no matter how it is done. It is sufficient that it is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of doing work, or the particular method which the employer knows that the contractor will adopt.
[The peculiar risk exception] is thus applicable only in situations in which the negligence of the independent contractor consists of the failure to take the precautions necessary for the safe performance of a task. The risk of harm must arise from the peculiar or inherent nature of the task or the manner of performance, and not the ordinary negligence which might attend the performance of any task. Liability does not ordinarily extend to so called "collateral" or "casual" negligence on the part of the contractor … in the performance of the operative details of the work. The negligence for which the employer of a general contractor is liable … must be such as is intimately connected with the work authorized and such as is reasonably likely from its nature.
McDonough v. U.S. Steel Corp., 324 A.2d 542, 546 (Pa.Super. 1974) (citation and some quotation marks omitted).
As an exception to the general rule of premises liability, the peculiar risk exception should be construed narrowly. Emery v. Leavesly McCollum , 725 A.2d 807, 814 (Pa.Super. 1999) (en banc). Additionally, "the determination of whether the facts of a particular case constitute a peculiar risk is a mixed question of law and fact and [ ] the trial judge may make this determination as a matter of law in clear cases." Drum v. Shaull Equip. and Supply Co., 787 A.2d 1050, 1061 (Pa.Super. 2001) (internal quotation marks omitted), quoting Emery, supra, appeal denied, 803 A.2d 735 (Pa. 2002).
Instantly, Appellant argues that the peculiar risk exception applies because "the work [ performed by Appellant] was done under unusually dangerous circumstances." Appellant's Brief at 20. In particular, Appellant claims that the work done for Thiele "did not involve a general deteriorating flat roof, but a unique and increasingly rare saw tooth design with dingy brittle skylights, [ constituting] an unusual, unique and peculiar risk, which is governed by specific provisions of [ Occupational Safety and Health Administration (OSHA)] ." Id. Additionally, Appellant maintains, "Thiele knew [ American Roofing] had not and was not again complying with OSHA's requirements of fall protection for skylights." Id. Appellant asserts, "the facts as presented clearly raise an issue of material fact that [ Thiele's] roof work was specially [ sic] dangerous and particularly risky, of which [ ] Thiele was well aware, yet failed to ensure its contractor [ (American Roofing)] took the appropriate precautions for [Appellant's] safety." Id. at 29.
In reaching its decision that no peculiar risk of harm existed on Thiele's roof, the trial court reasoned as follows.
The nature of the roof was clearly evident to [American Roofing] as well as [Appellant] at the outset of the work. Indeed, [American Roofing] had previously been engaged in prior years to perform work on the roof and was noted to have been in the roofing business for 25 years. Working on any elevated structure is inherently dangerous due to the risk of falling some distance. Roofers are always aware that a sloped roof is more dangerous than a flat roof, and the steeper the slope of the roof - - -the greater the chance of a slip and fall without a protective harness to catch the worker. It is further abundantly clear that the corrugated metal roof areas provide greater structural stability than the translucent fiberglass panels which allowed the sun's illumination to enter the building. In other words, there was nothing "unique" or posing a peculiar risk of harm that was not abundantly clear to even an untrained worker regarding the risk of fall from the roof in this case. [ ] Thiele as owner of the premises should not be subject to exceptions from the general rule that an owner engaging an independent contractor to take possession of [ the] premises for the completion of work should be liable for the injuries to the contractor's employees.
Trial Court Opinion, 4/ 12/ 13, at 8. In addition, the trial court relied upon the following portion of Appellant's deposition testimony when granting Thiele's motion.
Q: … Did you consider this [ roof] to be a more dangerous roof than other roofs you had worked on in the past?
A: No. No. I 'd look at them - - I knew it was a dangerous job, my job in general. So I look at them all the same, I use the same precautions. No.
Q: So roofing is a dangerous job?
A: Yeah, roofing is a dangerous occupation. N.T., 2/ 18/ 10, at 37; see also Trial Court Opinion, 4/ 12/ 13, at 2.
Upon reviewing the record in the light most favorable to Appellant and resolving all doubts as to the existence of a genuine issue of material fact against Thiele, we conclude material issues of fact exist that preclude the award of summary judgment in the instant proceedings. See Barnes, supra. As the trial court focused its decision upon the second prong of the peculiar risk test, i.e., "the risk is different from the usual and ordinary risk associated with the general type of work done[, ] " we will discuss that prong first . See Gutteridge, supra at 657.
Appellant retained Michael C. Wright – PE (Professional Engineer), CSP (Certified Safety Professional), CPE (Certified Plant Engineer), and President of Safety through Engineering, Inc., to author a report regarding the uniqueness of the roof on Thiele's building. Supplemental Brief in Opposition to Motion for Summary Judgment, 2/ 22/ 13, Ex. 7. Within his report, Wright described the roof as follows.
In the subject 19th-Century Saw-Tooth roof building design, the roof was constructed with fiberglass roof deck panels which were integrated into standard metal roof deck panels, in order, to permit natural sun light to penetrate into the building. … However, this factory building design concept was very unique and did create a peculiar risk and became inherently dangerous through the time exposure of the UV sun light. The subject factory building roof skylight design concept was very unique because most roof skylight design and installations were done with the skylights being vertical or nearly vertical. Also the roof skylight would typically be above the roof approximately four feet in order that the workers would not accidentally fall through the skylight.
However, the subject 19th-Century Saw-Tooth roof building design and construction was very unique and did create a peculiar risk of harm to the workers. With the metal roof deck being sloped and the fiberglass roof deck panels matching the same roof slope as the metal roof deck panels, this created a deception as being the same strength as the metal roof panels. Since the skylight roof deck panels were vertical or nearly vertical, the workers could not walk on them or even place heavy tools or equipment weights on the skylight roof deck panels. So normally the 19th-Century Saw-Tooth roof building design and construction would be safe for the workers and not create a safety hazard for the roofing workers.
I am very familiar with these types of factory buildings and their 19th-Century Saw-Tooth roof designs throughout the USA. I have performed m any different types of structural engineering renovation projects within these types of building structures throughout the US. Based on my past knowledge of these types of buildings, I would estimate the subject building was designed and built as early as the 1890s. I have observed that norm ally these types of factory buildings with their 19th-Century Saw-Tooth roof designs would almost always have a nearly vertical/ sloped part of their roof system that would integrate this type of skylight clear roof panels and/ or skylight glass roof panels and/ or skylight fiberglass roof panels into its standard metal decking roof panels. I have not observed any similar type of building design with its roof metal decking system that would allow/ permit persons/ workers to walk directly onto these skylight types of roof decking panels. I have observed that normally these types of skylight panels were designed and/or built above the roof's normal walking surface to make it difficult to walk on them; so that an elevated/ sloped skylight surface would produce a possible warning and/ or a possible alert to the person/ worker of a possible safety concern; if walking on this skylight surface. In fact, I have not seen/ observed – in my past 35 years as a structural engineer – any similar type of building roof design/ construction that integrated similar types of skylight fiberglass roof decking panels into its roof system surface, which would allow/ permit persons/ workers to walk directly onto these types of skylight fiberglass roof decking panels.
Id. at 17- 18.
Upon Wright's review of a portion of this record, including deposition testimony that will be further discussed herein, he expressed a number of opinions regarding the risks associated with Thiele's saw-tooth roof and the foreseeability of these risks to Thiele. Specifically, Wright opined as follows.
6. It is my opinion the integration of skylight fiberglass roof decking panels into its standard metal decking roof system did create a particular risk and/ or unique risk and/ or unique type of roof safety hazard and/ or [ ] unique safety hazard of falling through the roof deck – and not the normal roof hazard of falling off the roof edges – at the time of the accident.
7. It is my opinion due to saw-tooth construction and existence of fiberglass roof deck skylights, the risk of [ Appellant] falling through the fiberglass skylights was or should have been highly foreseeable to [ ] Thiele and that a peculiar risk of physical harm to others, including [ Appellant], would occur unless special precautions were taken such as fall arrest protection equipment being utilized.
8. It is my opinion the work on unique type of fiberglass roof deck skylights posed a peculiar risk of harm for which special precautions should have been taken by [ ] Thiele but was not.
10. It is my opinion Thiele knew or should have known that its plant facility maintenance personnel, including Mr. Robert Spencer, were on the subject roof and were required to wear fall protection equipment, to install anchorage locations for their fall protection system s and to be connected to these fall arrest protection anchorages when working around the subject fiberglass roof deck skylights prior to the time of the accident (Robert Spencer Dep., 17-18, October 4, 2012).
12. It is my opinion the subject skylight fiberglass roof deck panel did create a peculiar risk and/ or unique risk and/ or unique roof safety hazard of falling though the fiberglass roof deck – and not the normal roof safety hazard of falling off the roof edges – at the time of the accident.
21. It is my opinion the subject sloped roof was an old outdated saw-tooth construction that integrated fiberglass roof deck skylights into the roof. This created a unique fiberglass skylight safety hazard which rendered the circumstances surrounding the specific task especially dangerous.
Id. at 5-8.
In addition to Wright's expert report, the parties deposed a number of individuals involved with the Thiele roofing project regarding the special design of Thiele's saw-tooth roof. Larry McCaulley, President of American Roofing, testified, "there's very few [ saw-tooth roofs] around." N.T., 10/ 4/ 12, at 8-9, 33-34. McCaulley stated that these types of roofs are, "old day - - - way old day roofs, and there's - - - very seldom are we on a roof like that." Id. at 34. When asked if working on this type of saw-tooth roof creates unusual working conditions, McCaulley responded, "[ y] eah, anything out of the ordinary creates some kind of problem." Id. at 34.
When describing the roof itself, Appellant testified the roof was a hodgepodge of "wood, metal, shingle, rubber, skylights, steep, [ and] flat [ surfaces.] " N.T., 2/ 18/ 10, at 34. Specifically, he testified as follows.
It's a little bit of all of that. To me it looked like it was a building that had a bunch of additions on it and different pitches. There was some steep, some flat, but it had all been - - looked like maybe it was shingles underneath. There was [ sic] different layers underneath, but it had looked like at one time, it had gone over with a uniform material. But it was different pitches, valleys, dead valleys. Just it looked like something that - - it just didn't - - looked like just a maze almost, is what you could say.
Id. at 34-35. Appellant fell while working on a "transition area" of the roof, where an 8/ 12 pitch ran into a 5/ 12 pitch. Id. at 35. He testified that, as an experienced roofer, he did not consider this pitch to be steep. Id. at 33, 36.
Appellant's testimony coincides with the testimony of Joseph Romano, Jr., an owner of the Thiele building, who made the following comments regarding the state of the building's roof and the reasons for the renovations.
A: … it was a very big roof, multiple roofs. Some of it was shingled. Some of it had rubber roofing on. Some had just half lap paper on. …
A: The way they had done the construction, the original Thiele, was they tied everything together. So you had multiple pitched roofs with valleys. The valleys were always giving us trouble.
A: And then they had like a fiberglass skylight, like the old m ills used to do.
A: Skylight-type material. And we were trying to get rid of - - we were trying to lessen those [ skylights] . They had them in big, long rows and then we started taking them out. We were trying to make it safer so you could walk up there easier between the skylights or service the skylights. So we took out the long rows and we were putting in segmented. So we'd have maybe two sheets of plywood, one skylight, two sheets of plywood, one skylight .
N.T., 5/ 15/ 12, at 17-19. Based upon the foregoing, we conclude that a material issue of fact exists as to whether the risk presented by Thiele's saw-tooth roof was "different from the ordinary and usual risk associated with [ repairing a roof.] " See Gutteridge, supra .
Turning to the foreseeability prong of the peculiar risk test, an owner and an employee of Thiele testified that the risks presented by its saw-tooth roof were apparent to Thiele at the time it contracted with American Roofing. See id. at 656. Romano testified that when he first purchased the building "he realized there was some bad sections" of the roof and "the roofer warned [ him ] about [ those sections] ." N.T., 5/ 15/ 12, at 56. Additionally, Robert Spencer, who performed maintenance for Thiele, testified that he would use safety precautions, at times, while on the roof performing spot repairs. N.T., 10/ 4/ 12, at 17.
Q: [ D]uring the time that [ Thiele] started doing the roof replacement section by section, were you still repairing or doing spot repairs on the roof?
Q: Okay. And when you went up to do the spot repairs on the roof, did you have to use any type of safety harness, or safety equipment or anything when you went up there?
A: Occasionally it was [ i] n my discretion, if I had to or not.
Q: Okay. Okay. And tell me about that, when would you use something, or when would you use and when would you not?
A: Usually if I was on the main section of the roof away from the skylights and that, I would not - - - if I worked around the sky lots [ sic], I - - - skylights, I would usually tie off.
Q: Why would you tie down in the areas around the skylights?
A: Just for safety sake.
Id. at 17-19. Based upon the foregoing, we conclude that a material issue of fact also exists as to the foreseeability of the risk inherent in this sawtooth roof to Thiele when it contracted with American Roofing. See Gutteridge , supra .
When viewing the record in the light most favorable to Appellant and resolving all doubts as to the existence of a genuine issue of material fact against Thiele, we conclude the trial court improvidently granted summary judgment in favor of Thiele. See Barnes, supra. Upon our review of Appellant's expert report and the deposition testimony presented to us, we believe evidence exists that could allow a fact-finder to render a verdict in favor of Appellant. See Babb, supra. Sufficient evidence of record exists to support Appellant's peculiar risk theory to perm it it to be presented to the fact-finder. Accordingly, we conclude the trial court abused its discretion when it granted summary judgment in favor of Thiele. See id.
Furthermore, we conclude that the trial court erred as a matter of law when it granted Thiele's motion for summary judgment. Petrina, supra. In granting this motion, the trial court stated as follows.
Now, something that caught my attention in [ Appellant's] supplemental brief was the statement to say that [ Appellant's expert witness] indicates that it is clearly foreseeable that by not using fall protection equipment this incident was likely to happen.
To me, that takes it right out of the peculiar risk doctrine if it's clearly foreseeable. [ American Roofing] is a company that's been doing roofing work for 25 years. [ It has] been on this particular roof before. It's clearly foreseeable that this danger exists.
In my opinion, the risk w as apparent . [ American Roofing] had been on this roof before. Whether [ it] did or did not use safety equipment before, maybe [ it] felt that [ it] had a good experience with the roof and [ it] didn't need safety equipment. That was a bad judgment obviously in hindsight, but suffice it to say there was nothing surprising about this roof. It was a pitch roof. [ American Roofing] knew the risks of working on roofs, that people fall off of roofs. This does not strike m e as being a peculiar risk.
N.T., 2/ 25/ 13, at 18-19 (emphasis added). Thus, the trial court found that a peculiar risk did not exist because the risk was foreseeable. Id. This conclusion explicitly contravenes the test set forth in Gutteridge. See Gutteridge, supra at 656. Therefore, we conclude the trial court erred as a matter of law when it granted summary judgment on this ground. See Petrina , supra .
Based on the foregoing, we conclude the trial court abused its discretion and committed an error of law when it granted Thiele's motion for summary judgment. See Petrina, supra at 797-798. Accordingly, the trial court's February 28, 2013 order is reversed, the March 21, 2013 judgment is vacated, and the case is remanded for further proceedings consistent with this memorandum.
Order reversed. Judgment vacated. Case remanded. Jurisdiction relinquished.
P.J.E. Bender Notes Dissent.