Dunkle v. MIDDLEBURG MUN. AUTHORITY

• Decision Date: 10 February 2004
• Citation: 842 A.2d 477
• Parties: John DUNKLE and Mary Dunkle, Individually and as Co-Administrators of the Estate of William K. Dunkle, Appellants v. MIDDLEBURG MUNICIPAL AUTHORITY, Melham Associates, P.C., Rick Bittner and Wade Schultz.
• Court: Pennsylvania Commonwealth Court

842 A.2d 477

John DUNKLE and Mary Dunkle, Individually and as Co-Administrators of the Estate of William K. Dunkle, Appellants v. MIDDLEBURG MUNICIPAL AUTHORITY, Melham Associates, P.C., Rick Bittner and Wade Schultz.

Commonwealth Court of Pennsylvania.

Argued December 8, 2003.

Decided February 10, 2004.

Matthew A. Cartwright, Wilkes Barre, for appellants.

Stephen L. Banko, Jr., Camp Hill, for appellees.

BEFORE: COLINS, President Judge, LEAVITT, Judge and McCLOSKEY, Senior Judge.

OPINION BY JUDGE LEAVITT.

John Dunkle and Mary Dunkle (Dunkles), individually and as co-administrators of the Estate of William K. Dunkle, appeal from the order of the Court of Common Pleas of the 17th Judicial District (trial court) granting the Middleburg Municipal Authority's (Authority) motion for summary judgment. The trial court held that the Dunkles could not make out a common law tort claim against the Authority, which is the first determination to be made where the defense of governmental immunity is asserted. We affirm.

William K. Dunkle (decedent), the Dunkles' son, was asphyxiated when a sewer trench, in which he was working, collapsed and buried him. At the time, he was employed by Gutelius Excavating, Inc. (Gutelius), which had been engaged by the Authority to excavate the trench as part of the East Middleburg Sewer Extension Project, a wastewater disposal improvement project. In their complaint, the Dunkles alleged that the Authority, Melham Associates, P.C. (Melham), Rick Bittner and Wade Schultz¹ were, inter alia, each negligent in their failure to inspect and supervise the excavation to ensure that it satisfied the safety regulations of the Pennsylvania Department of Labor and Industry and of the federal Occupational Safety & Health Administration (OSHA).

The decedent was in a sewer trench approximately 14 feet deep when it collapsed; a trench box had not been installed and no other precaution, such as sloping the trench walls, had been taken. David Gutelius, owner of Gutelius, testified in deposition that he knew that OSHA required such precautions for trenches deeper than five feet. However, he believed that the shale in which they were digging was classified as type A, which does not require shoring under applicable OSHA rules. He described this shale as "not a solid rock, but it's not anything that water or sand dilute in it [sic]." Reproduced Record 160a. (R.R.___). He explained that he found OSHA's rules and regulations misleading because solid rock, which stands vertical, does not require shoring. He explained that

[u]ntil this [shale] caved in, it would have been called stable rock, stood vertical, 90 degrees. After it caves in, according to OSHA's rules and regulations, it's not stable, so that turns it into a C soil. Before the accident it was stable.... After the cave-in, it's not stable anymore, so now it's not a stable rock.

R.R. 161a. A Gutelius employee who was on the jobsite that day also testified to the stability of the soil as follows:

A. I'm quite sure if there would have been [a discussion about whether to use a trench box that day, the job foreman] would have put it in. There's no doubt in my mind.... The way the smoke was rolling off the hoe teeth when he dug the pipe, there was no doubt. I mean, I trusted my life in that ditch.

Q. Because it seemed pretty hard?

A. Yes, it did.

R.R. 979a.

In his deposition, the Authority's chairman, Dorr Stock, testified that the Authority relied upon its contractor, Gutelius, to be responsible for the safety of his workers. Gutelius was experienced in sewer projects, having been in the excavation business since 1986. The Authority's contract required Gutelius to provide the appropriate safety precautions and to comply with all applicable laws and regulations. Stock testified that he believed that Melham, which provided for inspections by the engineers, would also provide on-site safety advice.²

The Authority moved for summary judgment in its favor, asserting that it enjoyed governmental immunity under the act commonly known as the Political Subdivision Torts Claims Act, (Tort Claims Act), 42 Pa.C.S. §§ 8541-8542. Under Section 8541, the Authority, as a local agency, is immune from liability for damages arising from its own acts or those of its employees, unless the injury falls into one of the exceptions to governmental immunity specified in Section 8542. To qualify for an exception under the Tort Claims Act, a plaintiff is required to prove that (1) the damages would be recoverable under common law or statute against a person unprotected by governmental immunity, and (2) the negligent act of the Authority or its employees, which caused the injury, falls within one of the limited categories of exceptions to immunity.³Starr v. Veneziano, 560 Pa. 650, 657, 747 A.2d 867, 871 (2000). The Dunkles countered that the Authority's alleged negligence fell within the real estate and utility service facilities exceptions to governmental immunity⁴ thereby precluding a judgment in the Authority's favor.

The trial court granted the Authority's motion for summary judgment, concluding that the Dunkles did not establish a claim recoverable at common law, which generally provides that the negligent actions of a contractor cannot be attributed to the person that engages the services of the contractor. Where, however, the contracted work is peculiarly hazardous, the negligence of the independent contractor may be imputed to the one employing the contractor. Relying on precedent from the Superior Court of Pennsylvania, the trial court held that excavation of a sewer trench is not such a peculiar risk, and, therefore, the Authority could not be held vicariously liable for the negligence of Gutelius.⁵ This timely appeal ensued.⁶ On appeal, the Dunkles assert that the trial court erred. They argue that the case relied upon by the trial court, Motter v. Meadows Limited Partnership, 451 Pa.Super. 520, 680 A.2d 887 (1996), was wrongly decided and not even consistent with other holdings of the Superior Court on what constitutes a peculiar risk. They invite this Court to establish different law. In addition, the Dunkles contend that the facts in Motter are distinguishable from the facts here.⁷

As noted by the trial court, one who employs⁸ an independent contractor is not liable for physical harm caused by a negligent act or omission of the contractor. Moles v. Borough of Norristown, 780 A.2d 787, 791 (Pa.Cmwlth.2001); Restatement (Second) of Torts 409 (1965) (Restatement). However, an exception to this general rule has been identified by the Restatement for special dangers and peculiar risks as follows:

Section 416. Work Dangerous In Absence Of Special Precautions.

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

* * *

Section 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 knows 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 416, 427. Pennsylvania has adopted this exception. Philadelphia Electric Co. v. James Julian, Inc., 425 Pa. 217, 228 A.2d 669 (1967).

In Motter, the Superior Court considered whether working in a sewer trench presents a special danger or peculiar risk and found that it did not. To reach this conclusion, the Court applied the Pennsylvania test for making this determination:

1) Was the risk foreseeable to the employer of the independent contractor at the time the contract was executed?; and 2) Was the risk different from the usual and ordinary risk associated with the general type of work done, i.e., does the specific project or task chosen by the employer involve circumstances that were substantially out-of-the-ordinary?[⁹]

Motter, 680 A.2d at 890 (citations omitted). Stated otherwise, a peculiar risk must be one not created solely by the contractor's negligence in performing the operative details of the work.

Affirming the trial court, the Superior Court held that the "cave-in of a sewer trench is not an unusual or unexpected risk, but rather, is a risk faced by excavating companies every day." Motter, 680 A.2d at 892.¹⁰ The appellant's argument that digging in shale soil made the project unusually dangerous was also rejected. The risk was not digging in shale soil but the failure of the contractor to follow OSHA rules and regulations that increased the danger of a cave-in.

The Dunkles contend that Motter was wrongly decided and urge that, instead, we adopt pre-Motter holdings.¹¹ Alternatively, they suggest that we follow the Montana Supreme Court's decision in Beckman v. Butte-Silver Bow County, 299 Mont. 389, 1 P.3d 348 (2000).

In Beckman, the Montana Supreme Court held a municipality vicariously liable for the negligent failure of its subcontractor¹² to use a trench box in a trench that collapsed on a worker. In doing so, it reversed its earlier holding that a contractor would not be liable for injuries to a subcontractor's employee when the peculiar risk or inherent danger could have been avoided by standard precautions. In Kemp v. Bechtel Construction Co., the Montana Supreme Court had previously considered the peculiar risk exception in the Restatement and held that Here, the type of trenching contemplated in the subcontract presented no peculiar risk or inherent danger. Rather, the...