Mentzer v. Ognibene

• Decision Date: 20 September 1991
• Citation: 408 Pa.Super. 578,597 A.2d 604
• Parties: David R. MENTZER, Appellant, v. Frank A. OGNIBENE, Joel Galinn, Arthur Ognibene, and F.A.O. Land Management Development Company, Inc., Leonard S. Fiore, Inc., Borough of State College and Centre Region Council of Government, Appellees.
• Court: Pennsylvania Superior Court

Page 604

597 A.2d 604

408 Pa.Super. 578

David R. MENTZER, Appellant, v. Frank A. OGNIBENE, Joel Galinn, Arthur Ognibene, and F.A.O Land Management Development Company, Inc., Leonard S. Fiore Inc., Borough of State College and Centre Region Council of Government, Appellees.

Superior Court of Pennsylvania.

Argued Jan. 23, 1991.

Filed July 15, 1991.

Reargument Denied Sept. 20, 1991.

Alexander H. Lindsay, Jr., Butler, for appellant.

James M. Horne, State College, for appellees.

Before OLSZEWSKI, BECK and TAMILIA, JJ.

BECK, Judge ¹:

Appellant, David R. Mentzer, appeals from an order granting summary judgment in favor of defendants Frank A. Ognibene ("Frank"), Joel Galinn ("Galinn"), Arthur Ognibene ("Arthur") and F.A.O. Land Management and Development Co., Inc. ("FAO"). Mentzer filed a complaint seeking to hold defendants liable for the negligence of an independent contractor, Leonard S. Fiore, Inc. ("Fiore"), under several theories of negligence set forth in Sections 411, 416 and 427 of the Restatement (Second) of Torts, as well as under a third-party beneficiary breach of contract theory. Mentzer also asserted that the defendants were directly personally negligent in failing to prevent the negligence of Fiore.

The Court of Common Pleas of Centre County granted defendants' motion for summary judgment and Mentzer filed this timely appeal. ² We affirm the trial court's order.

The undisputed facts of this case were appropriately summarized by the trial court as follows:

Defendants Frank A. Ognibene ("Frank") and Joel Galinn ("Galinn") were owners of property located at 953-959 Southgate Drive, State College, Centre County, Pennsylvania. They arranged for Defendants Arthur Ognibene ("Arthur") and F.A.O. Land Management and Development Company, Inc. ("F.A.O."), a corporation owned by Arthur and Frank, to have a building constructed on the property. Defendant Leonard S. Fiore, Inc. ("Fiore"), was the general contractor for the construction project. Plaintiff David R. Mentzer ("Mentzer") was an employee of Fiore. On June 28, 1985, while engaged in his employment as a carpenter for Fiore at 953-959 Southgate Drive, Mentzer fell through a hole cut in the floor for an internal stairway. He fell eighteen feet to a concrete basement floor. As a result of the fall, Mentzer suffered severe injuries.

Trial Court Opinion, 5/14/90, at pp. 1-2. Additionally, it is undisputed that the opening which was to form the internal stairwell through which Mentzer fell was not surrounded by railings or standard toeboards or a sufficient floor hole covering.

On review of an order granting summary judgment, we must determine whether the moving party has established that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b). Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 468-69 (1979). In making this determination, we must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 467 A.2d 330 (1983). All doubts as to the existence of a factual dispute must be resolved in favor of the non-moving party and the entry of summary judgment is appropriate only in the clearest of cases. Thompson Coal, supra.

Against this backdrop, we analyze Mentzer's allegations of error seriatim.

I. Restatement (Second) Torts § 411

Mentzer sought to impose liability on Frank and Galinn, as owners of the land, for their selection of Fiore as the general contractor. As authority for this theory of liability, Mentzer relied on section 411 of the Restatement, which provides:

§ 411 Negligence in Selection of Contractor

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (emphasis added)

(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or

(b) to perform any duty which the employer owes to third persons. (emphasis added)

The central issue posed in this case is whether an employee of a contractor is to be included within the definition of "third persons" to whom the property owner owes a duty under section 411. We agree with the trial court that such an employee is not within the protected class of persons.

There is no binding Pennsylvania precedent dealing with the scope of the phrase "third persons" as used in section 411. Although there are two cases that address the question in dicta, unfortunately these cases do not discuss the issue in any depth and moreover do not steer a consistent course.

The first of these cases is Wilk v. Haus, 313 Pa.Super. 479, 460 A.2d 288 (1983). In Wilk, an employee of a contractor was killed while working on a roofing job at defendant's premises. The employee's estate sued defendant on a number of theories, one of which was that the contractor was an independent contractor who had been negligently selected by the defendant owner. This theory was based on section 411. The court found summary judgment in favor of the defendant inappropriate for several reasons, including the fact that the evidence did not clearly show whether the contractor was in fact an independent contractor. The court further noted that on the factual record before it, there was an arguable basis for further proceedings against the defendant based on section 411.

Appellant urges us to construe Wilk as establishing that liability under 411 may be found even where the plaintiff is an employee of the contractor. We cannot adopt this construction. The Wilk court did not address whether liability under section 411 might eventually be barred because the plaintiff was an employee of the contractor. In fact, the Wilk court specifically refused to analyze this issue in any detail because the factual record before it did not clearly establish independent contractor status, which is a prerequisite to the applicability of section 411. Wilk, 313 Pa.Super. at 489-90 n. 2, 460 A.2d at 293-94 n. 2. Thus, we do not find that any implication regarding the scope of section 411 can be gleaned from the Wilk court's remand of that case for further proceedings. ³

The second case in which the applicability of section 411 to claims by a contractor's employee has been discussed, and on which appellee herein relies, is Dudash v. Palmyra Borough Authority, 335 Pa.Super. 1, 483 A.2d 924 (1984). Dudash involved a personal injury claim by an employee of a sub-contractor against several defendants, including the owner of the property where the employee was injured. The court was asked to review several orders of the trial court, including an order granting partial summary judgment for the owner on the employee's claim under section 411. The trial court had determined that the employee was not within the class of "third persons" to whom the owner's duty under section 411 ran. This court held that the order of partial summary judgment was interlocutory and refused to review it on its merits, although at another point in the opinion the court appeared impliedly to approve of the trial court's holding on section 411. As in the case of Wilk, Dudash does not establish any binding precedent regarding the scope of section 411 liability.

Given the lack of binding precedent on the issue presented, we must analyze it as one of first impression in this Commonwealth. We turn, therefore, to an examination of the language of section 411 and the comments thereto, the opinions of other jurisdictions construing section 411, and general principles of Pennsylvania law concerning the duties of property owners to employees of independent contractors working on the property.

Section 411 by its own terms imposes liability on a property owner for negligent hiring of a contractor only to "third persons" who are harmed as a result of such negligence. Although this phrase is not defined, the comments and illustrations to section 411 clearly suggest that it is intended to apply to persons who are not involved in the construction project itself and yet who are injured as a result of the negligent act of the contractor. None of the many illustrations accompanying section 411 include any examples of how the liability of the owner would run to an employee of the contractor. See, e.g., illustration 1 (customer injured by violent employee of contractor); illustration 2 (passing driver injured by negligent contractor); illustrations 3 & 4 (hotel guests injured by negligent contractor hired by innkeeper); illustration 5 (pedestrian injured by negligent driver employed by contractor); illustrations 6, 7 & 8 (passerby or pedestrian injured due to negligence of contractor).

Moreover, in comment f to section 411, the operation of the section is specifically explained in the context of either repair or construction of a building on the owner's property. Comment f limits the liability to be imposed under section 411 to those situations where the injured person is "a person to whom the possessor owes a duty to exercise reasonable care to prepare and maintain a safe building." Pennsylvania law imposes no general duty on a property owner to prepare and maintain a safe building for the benefit of a contractor's employees who are working on that building. See discussion of common law duties of a property owner, infra, at 609-610.

This limitation on the scope of the duty imposed by section 411 has been adopted in many of the jurisdictions that have considered the question of whether section 411 imposes liability on the employee of the negligently hired contractor. For example, in Payne v. Lee, 686 F.Supp. 677 (E.D.Tenn.1988), the district court held that section 411 does not protect employees of the negligently hired contractor. The court based this construction of section 411 in part on the limiting nature of the...