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Nertavich v. PPL Electric Utilities

Superior Court of Pennsylvania

August 27, 2014


Argued January 14, 2014

Page 222

Appeal from the Judgment of the Court of Common Pleas, Philadelphia County, Civil Division, No(s): No. 2316 Sept. Term 2009. Before BERNSTEIN, J.

Andrew F. Susko, Philadelphia, for appellant.

Joel Rosen, Philadelphia, for Nertavich, appellee.

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and STRASSBURGER, J.[*]  Strassburger, J., files a Dissenting Opinion.


Page 223


PPL Electric Utilities, Corporation (" PPL" ) appeals from the judgment of $2,494,542.35, entered December 5, 2012, in the Philadelphia County Court of Common Pleas, in favor of Vincent P. Nertavich, Jr., for the injuries he sustained when he fell 40 feet while working as the employee of an independent contractor[1] hired to paint PPL's electric transmission poles.[2] On appeal, PPL argues the trial court erred in failing to grant judgment notwithstanding the verdict (j.n.o.v.) or a new trial. For the reasons set forth below, we conclude that PPL was entitled to the grant of j.n.o.v., and, accordingly, reverse the judgment entered in favor of Nertavich.

The facts underlying this appeal are summarized by the trial court as follows:

Defendant PPL owns 90-foot-high, 10-foot-in circumference tubular steel electric transmission poles. Some of these poles need to be repainted from time to time to prevent structural decay. PPL contracted with QSC [Painting, Nertavich's] employer, to paint the poles. The contract called for work to begin in August 2007 and be completed by November 2007. It directed that " [a]ll work shall be performed according to the attached PPL EU 'Specification for the Maintenance Painting of Transmission Structures' revision dated 8/3/07."
That PPL Specification document contained a variety of detailed requirements about the job. It prescribed each step how to paint the poles.
. . . .

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While the workmen painted, power might continue to surge through the lines attached to the poles. As a result, the workers had to take " extra precautions when painting near insulators, making sure that paint does not splatter or drip onto insulators," and the workers would not be allowed to wipe paint off the insulators. Also, PPL maintained control over the worksite: PPL supplied an " Authorized Representative," also known as a contract field representative, for the project who was " the daily source of contact ... in areas of any question, materials, quality assurance, general safety, work procedures and schedule." PPL had to go to the power substations and set the circuit breakers so that the workers would not be electrocuted. PPL employed a " green tag" procedure where the PPL representative would not allow workers on the poles until the lines were set.
Pursuant to PPL's internal guidelines for safety and health procedures, the PPL field representative had the duty to " monitor the contractor to ensure that safety requirements of the contract are adhered to ... [and] observe the contractor's performance." The PPL field representative had the authority to " stop the contractor's work for severe or repeated safety violations," and " if the PPL Field Representative observes an unsafe work practice involving a direct threat or imminent danger, the field Representative immediately will direct that all work stop[.]"
PPL's poles dated from the 1980s. The poles were custom ordered from Defendant Thomas & Betts, with PPL establishing their specifications. The pole specifications included the dimensions of the pole, its paint, and the number and type of attachment points. PPL was aware that the poles would need repainting every 15 to 20 years. PPL did not specify that the poles should have any vangs[, i.e., pieces of metal,] welded onto them so that a worker's lanyard or other suspension device could attach to the pole. The only attachment points on the poles, besides those at the top of the poles and on the arms for electrical wires, were a series of brackets running up one side of the pole. These brackets served as attachment points for removable single-rail ladders, known as " chicken" ladders. They are known as " chicken" ladders because they are unstable and wobble, frightening workers. There was no place for a worker climbing the pole to attach a lanyard or lifeline, except for somewhere on these ladders. There were two types of ladders. Both consisted of a central metal beam with metal pegs protruding out to the left and right. The first, termed a working ladder, had parallel pegs on each side to give the appearance of a straight bar across the rail so that a worker could stand level. The second type, the climbing ladder, had alternating pegs staggered at regular intervals up each side of the rail. The ladders came from the manufacturer with two bolts that attach through their bottom to secure them to the pole. QSC, not having another means of lifting its workers into place to paint the pole, asked PPL for the removable ladders. PPL provided QSC with the ladders, but not with the bolts.
On September 23, 2007, ... Nertavich was 40 feet off the ground working on a PPL pole. More experienced workers were painting the pole above him. He was standing on one of the climbing ladders. QSC provided [Nertavich] with a pole belt, a body harness, and two lanyards. One lanyard was to attach to the pole belt, and the other was to attach to the body harness to serve as a

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lifeline. [Nertavich] used only the pole belt and one lanyard. He testified at trial that on previous jobs he had used only the pole belt and one lanyard, and that no one told him he had to use the harness as well.[3] The one lanyard he used was coated in dried paint. [Nertavich] tied the paint-coated lanyard to the ladder above him, a working ladder, by looping it around a left peg. [Nertavich], holding on to the lanyard, leaned out to his left to slap paint on a hard-to-reach spot on the back of the pole. The ladder above him to which he was tied off wobbled several inches to the left. The lanyard unlooped. [Nertavich] fell 40 feet, landing on his feet. The fall fractured his feet, dislocated his ankles, fractured his knee, his right femur, his right hip, and burst several of his lumbar spine disks. [Nertavich] lost 3 inches in height as his body literally compacted from the fall.

Trial Court Opinion, 6/14/2013, at 2-6 (footnotes and record citations omitted).

Nertavich initiated this personal injury/products liability action by writ of summons on September 23, 2009. After filing a complaint and first amended complaint, Nertavich filed a second amended complaint on April 21, 2011. The named defendants included the " product defendants" -- Falltech, Thomas & Betts, and Winola Industrial, Inc. -- which designed, manufactured, and/or sold fall protection equipment, the electric transmission poles, and the single-rail ladders[4] -- and the " utility defendants" -- PPL and KTA/Set Environmental, the owner of the utility poles and an engineering consulting company hired to oversee the painting work, respectively. Nertavich raised claims of general negligence, professional negligence, strict liability, and breach of warranty, as well as sought punitive damages.

PPL filed a motion for summary judgment on July 5, 2011, which the trial court denied on September 1, 2011.[5] The case proceeded to a jury trial, commencing in February of 2012. PPL moved for a nonsuit at the conclusion of Nertavich's case-in-chief, and a directed verdict at the close of all testimony, both of which were denied by the trial court.[6] On March 9, 2012, the jury returned a verdict in favor of Nertavich in the amount of $4,613,150.00. However, the jury found PPL 51% causally negligent for Nertavich's injuries, and Nertavich, himself, 49% causally negligent for his injuries. The jury also found that the ladder designed by Thomas & Betts was not defective.[7]

Both parties sought post-trial relief. On March 13, 2012, Nertavich filed a motion for delay damages, and, on March 19, 2012, PPL filed posttrial motions seeking j.n.o.v. or a new trial. The trial court granted Nertavich's motion, and, on April 9, 2012, entered a molded verdict in the amount of

Page 226

$2,494,542.35 in favor of Nertavich and against PPL.[8] Thereafter, on November 26, 2012, the trial court denied PPL's post-trial motion, and on December 5, 2012, judgment was entered on the verdict. This timely appeal followed.[9]

PPL raises the following four issues on appeal:

(1) Is PPL entitled to judgment notwithstanding the verdict for injuries sustained by an employee of an independent contractor when controlling Pennylvania law, as reflected in Beil v. Telesis Construction, Inc., 608 Pa. 273, 11 A.3d 456 (Pa. 2011), requires that PPL exercise significant control over the manner, methods, means, and operative detail of the portion of the independent contractor's work that is specifically related to the accident, and the evidence at trial established that the independent contractor itself directed and exercised control over its work?
(2) Is PPL entitled to a new trial on liability when the Court improperly permitted Nertavich to introduce evidence of PPL's other purported duties -- including such things as PPL's internal guidelines, OSHA, NESC, the duties of PPL's onsite safety representative, and a common law duty to hire competent contractors -- when those purported duties are inconsistent with Beil or otherwise inapplicable under the law?
(3) Is PPL entitled to a new trial on liability when the Court instructed the jury contrary to Beil?
(4) Is PPL entitled to judgment notwithstanding the verdict when the evidence established that Nertavich assumed the risk of his fall?

PPL's Brief at 3-4. Because we conclude that PPL is entitled to j.n.o.v. on its first issue, we need not address its remaining claims.

First, PPL contends it is entitled to j.n.o.v. because Nertavich failed to establish that it retained control over the manner, methods, means, and operative detail of the work of Nertavich's employer that was sufficient to overcome the general rule that an owner owes no duty to the employees of an independent contractor.

" A [j.n.o.v.] can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/or, (2) the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant." Egan v. USI Mid-Atl., Inc., 2014 PA Super 62, 92 A.3d 1, 19-20 (Pa. Super. 2014) (citation omitted). Our review of a trial court's decision granting or denying a post-trial motion for j.n.o.v. is well-established:

When a court reviews a motion for judgment n.o.v., the reviewing court considers the evidence in the light most favorable to the verdict winner, who must receive the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his or her favor. A judgment n.o.v. should only be entered in a clear case.

Beil v. Telesis Const. Inc., 608 Pa. 273, 11 A.3d 456, 462 (Pa. 2011) (citations omitted). Further, we will not substitute our judgment for that of the fact finder when it

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comes to questions of credibility and weight of the evidence. Egan, supra, 92 A.3d at 20 (citation omitted).

In Beil, the case upon which PPL relies for support of its appeal, the Pennsylvania Supreme Court reiterated the century old " accepted and general rule ... that a landowner who engages an independent contractor is' not responsible for the acts or omissions of such independent contractor or his employees." Beil, supra, 11 A.3d at 466 (emphasis supplied).

This foundational law is based upon the long-standing notion that one is not vicariously liable for the negligence of an independent contractor, because engaging an independent contractor " implies that the contractor is independent in the manner of doing the work contracted for. How can the other party control the contractor who is engaged to do the work, and who presumably knows more about doing it than the man who by contract authorized him to do it? Responsibility goes with authority." Silveus v. Grossman, 307 Pa. 272, 278, 161 A. 362, 364 (1932).


However, this general rule is subject to certain exceptions. Relevant to the present case is the " retained control" exception set forth in Section 414 of the Restatement (Second) of Torts:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Restatement (Second) of Torts § 414 (1965).

The Beil Court discussed the degree of control necessary to hold an owner liable for injuries suffered by an employee of an independent contractor under Section 414:

The primary question in many premises cases, as is the issue before us, is whether the property owner hirer of the independent contractor retained sufficient control of the work to be legally responsible for the harm to the plaintiff. Comment c to Section 414 provides the most commonly used test for determining whether an employer/landowner retained sufficient control. More precisely, comment c speaks to the degree of control necessary for the exception to overcome the general rule against liability. Comment c makes manifest that the right of control must go beyond a general right to order, inspect, make suggestions, or prescribe alterations or deviations, but that there must be such a retention of the right of supervision that it renders the contractor not entirely free to do the work in his own way:
In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.
Restatement (Second) of Torts § 414, cmt. c (emphasis added); see also Hader[ v. Coplay Cement Mfg. Co., 410 Pa.]

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[139,] 150-52, 189 A.2d [271,] 277-78 [(1963] (rejecting assertion that site visitation and provision of technical advice regarding installation of machinery did not demonstrate control of workplace). The control required to implicate the exception to the general rule against liability can be demonstrated in two ways. First, a plaintiff may point to contractual provisions giving the premises owner control over the manner, method, and operative details of the work. Alternatively, the plaintiff may demonstrate that the land owner exercised actual control over the work. As a general proposition, the question of the quantum of retained control necessary to make the owner of the premises liable is a question for the jury. When, however, the evidence fails to establish the requisite retained control, the determination of liability may be made as a matter of law.

Id. at 466-467 (emphasis supplied in part). The Court also noted that, in prior decisions, it construed the " retained control" exception narrowly. Id. at 467, citing Hader, supra; Farabaugh v. Pennsylvania Turnpike Com'n, 590 Pa. 46, 911 A.2d 1264 (Pa. 2006).

In the present case, the trial court found the quality of control PPL exercised over the jobsite was sufficient to submit to the jury the question of whether the " quantity of control necessary to make PPL liable existed." Trial Court Opinion, 6/14/2013, at 17. Specifically, the court determined that Nertavich presented sufficient ...

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