Brletich v. U.S. Steel Corp.

• Decision Date: 20 December 1971
• Citation: 285 A.2d 133,445 Pa. 525
• Parties: John A. BRLETICH, Appellant, v. UNITED STATES STEEL CORPORATION et al.
• Court: Pennsylvania Supreme Court

Page 133

285 A.2d 133

445 Pa. 525

John A. BRLETICH, Appellant, v. UNITED STATES STEEL CORPORATION et al.

Supreme Court of Pennsylvania.

Dec. 20, 1971.

[445 Pa. 526] Louis C. Glasso, Pittsburgh, for appellant.

J. Tomlinson Fort, Reed, Smith, Shaw & McClay, Pittsburgh, for appellees.

Before BELL, C.J., and EAGEN O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION OF THE COURT

BARBIERI, Justice.

John A. Breletich, is the appellant here and was plaintiff below in this trespass action against United States Steel Corporation, defendant-appellee (Steel), for personal injuries suffered by him while working on Steel's Donora property as an employe of Luria Brothers & Company, Inc. (Luria). Luria was there as demolition contractor under certain agreements with Steel. Luria subcontracted with D. J. Betters Truck & Salvage (Betters) to provide a crane and operator in connection with demolition of an ore trestle. It was the conduct of Betters' crane operator in this trestle demolition that caused appellant's injuries.

Plaintiff's (appellant's) first suit was against Betters for the negligence of Betters' crane operator. Betters brought Luria into that suit as additional defendant on the ground that a Luria employe's negligence was responsible for the injuries. The other suit, the one before us was a separate suit by appellant against Steel charging Steel with certain responsibilities as land owner or possessor including alleged duties of care as to appellant despite the contract with appellant's employer, Luria. Steel brought Luria and Betters into this case as additional defendants. Both suits were consolidated for trial, but appellant settled with Betters for $39,000, and gave Betters a joint tort feasor's release.

This case, (the one that originated against Steel), was tried to a jury. At the conclusion of the trial, the trial judge entered a compulsory nonsuit in favor of Steel. The case against Luria and Betters was submitted to the jury, resulting in a joint verdict by the jury against Luria and Betters for $165,000. Appellant-plaintiff's motion to remove the nonsuit was refused, and Luria's and its insurance carrier's motions for a new trial, and Luria's motion for judgment N.o.v., were dismissed by a court En banc. This appeal questions the propriety of the nonsuit and the refusal to take it off.

The two relevant contracts between Steel and Luria provide for the dismantling of the trestle and for the sale to Luria of certain material therefrom. Both contracts provided that Luria was to be responsible for the proper performance of the work and for insuring the safety of all persons who might enter upon the premises, including the contractor's employes. The contracts further require that the work to be performed was subject to the inspection and approval of Steel's designated engineer, but that such inspection and approval would not not relieve Luria of its responsibility to properly perform the work.

Appellant had been employed by Luria as a laborer from 1963 until the date of the accident in April of 1964. On the date of the accident, appellant's supervisor, also a Luria employe, assigned him to a crew that was dismantling the trestle. The crew consisted of an employe of Betters, who operated a mobile crane; appellant, who was assigned by his supervisor to work on the trestle; and a third employe, also Luria's, who stood on the ground and acted in response to signals received from appellant. In dismantling the trestle, employes, known as 'burners', burned through the beams in order to reduce them to segments 22 feet long. A little piece of each steel beam would be left to steady the cut beam. The appellant's job, which he performed pursuant to instructions from his (Luria's) supervisor, was to attach a single slug in the middle of the beam, after which appellant would move away and signal the crane operator who would then lift the beam from the trestle and lower it to the ground.

On the day of the accident, the crane operator jerked one of the beams as he was lifting it, whereupon the beam started to sway and bob, becoming uncontrollable and crashing down upon one of the rails on the trestle. This rail was then thrown against appellant, striking him across his leg and causing severe injuries which resulted in the loss of the leg.

Appellant contends that the lower court erred in entering the nonsuit in favor of Steel for several reasons. First, and principally, appellant theorizes that while he may not have been able to show actual control over the operation by Steel, he could present evidence from which the jury could infer the existence of a duty owing by Steel to appellant which was breached by Steel. This alleged duty, appellant argues, grows out of Steel's alleged power to take from Luria the control of the premises. This power could be exercised on the basis of inspections which Steel was permitted to make. Appellant argues from this that Steel retained and had a duty to exercise responsibility for the safety of Luria's employes, notwithstanding the agreement to the contrary which put this burden of care solely upon Luria. In short, appellant urges us to hold that an owner or possessor of land who commits his premises to an independent contractor may not, even by contract, free himself from a continuing duty to be responsible for the safety of the contractor's employes. He contends that, at least in this case, the holding he seeks is warranted and that he should have been permitted to go to the jury on certain liability theories based upon the provisions of Sections 318, 343 and 344 of the Restatement (Second) of Torts. ¹

Principally, he relies upon Section 318, contending that the lower court erred in basing the nonsuit ruling upon Hader v. Coplay Cement Manufacturing Co., 410 Pa. 139, 189 A.2d 271 (1963). This was error, he contends, because Hader was overruled by our decision in Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968), as was 'indicated' in Fisher v. United States, 299 F.Supp. 1 (E.D.Pa., April 23, 1969), the latter being a case which turned on that District Court's interpretation of Pennsylvania law with regard to Comment a of Restatement Section 318. If not overruled, he urges that Hader is readily distinguishable. We cannot agree with either contention. We find that Hader is neither overruled by Glass, nor distinguishable, and note that Fisher has since been reversed by the Circuit Court of Appeals for the Third Circuit, ² specifically on the ground that Hader expressed the law of Pennsylvania and that, in a case like this one, Glass was readily distinguishable. In Fisher, as here, it was contended that the presence of the defendant's resident engineer at the site 'who had authority to require the contractor's compliance with a safety plan', assisted by two inspectors, put the defendant in possession within the meaning of Restatement Section 318, and subject to the obligations of possessors of land, as this section was 'adopted as law and applied by the Supreme Court of Pennsylvania in Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968).' In reversing, the Circuit Court stated: 'The law of Pennsylvania makes it clear that one who employs an independent contractor may also employ a person to ascertain that the work is done according to plans and specifications and that the employment of such a person in no way indicates that the independent contractor is being subjected to control. Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963); Townsend v. City of Pittsburgh, 383 Pa. 453, 119 A.2d 227 (1956); Pennsylvania R. Co. v. Allegheny County, 324 Pa. 216, 188 A. 178 (1936). This is a corollary to the long recognized general right of inspection and supervision that an owner normally enjoys and exercises to insure his receiving from the contractor the benefit or total performance bargained for. In employing those men, the United States was only seeking to protect itself and to insure that the contractors were performing in the manner required of them under the contract. (citations omitted) We conclude that the district court's finding that the United States was in possession of the site based on the presence of the Government's engineer and inspectors was clearly erroneous.' (Emphasis added.)

In distinguishing Glass, the Circuit Court in Fisher stated: 'The owner's prime concern is to see to it that the contract is performed. It was for this purpose that the United States maintained an engineer and inspectors at the site. A large construction project is certainly not the same as the situation presented in Glass v. Freeman, supra. There the...