Young v. Eastern Engineering and Elevator Co., Inc.

• Decision Date: 08 February 1989
• Citation: 381 Pa.Super. 428,554 A.2d 77
• Parties: Charles YOUNG v. EASTERN ENGINEERING AND ELEVATOR COMPANY, INC., Appellant, H.H. Robertson Company, the Ballinger Company, the Williard Company, Turner Construction Company, City of Philadelphia Board of Trusts, and GEMH 2, Inc. and the City of Philadelphia. Appeal of EASTERN ENGINEERING AND ELEVATOR COMPANY, INC.
• Court: Pennsylvania Superior Court

Page 77

554 A.2d 77

381 Pa.Super. 428

Charles YOUNG v. EASTERN ENGINEERING AND ELEVATOR COMPANY, INC., Appellant H.H. Robertson Company, the Ballinger Company, the Williard Company, Turner Construction Company, City of Philadelphia Board of Trusts, and GEMH 2, Inc. and the City of Philadelphia Appeal of EASTERN ENGINEERING AND ELEVATOR COMPANY, INC.

Superior Court of Pennsylvania.

Submitted Sept. 8, 1988.

Filed Feb. 8, 1989.

John J. O'Brien, III, Philadelphia, for appellant.

Robert A. Korn, Philadelphia, for Young, appellee.

Barbara A. Pennell, Philadelphia, for H.H. Robertson, appellee.

Joel D. Gusky, Philadelphia, for Ballinger, appellee.

Michael Saltzburg, Philadelphia, for Williard, appellee.

Charles E. McClafferty, Philadelphia, for Turner, appellee.

Thomas E. Byrne, III, Philadelphia, for Bd. of Trusts, appellee.

Patrick M. Shea, Philadelphia, for Gemh 2, appellee.

John B. Day, Deputy City Sol., Philadelphia, for Philadelphia, appellee.

Before WIEAND, McEWEN and MELINSON, JJ.

MELINSON, Judge:

Appellant, Eastern Engineering and Elevator Company, Inc. [hereinafter "Eastern"], appeals from two Orders of the Court of Common Pleas issued by the Honorable Curtis C. Carson on June 16, and July 21, 1987, granting motions for summary judgment filed on behalf of Appellees, H.H. Robertson Company [hereinafter "Robertson"] and The Ballinger Company [hereinafter "Ballinger"].

On October 10, 1979, Plaintiff, Charles Young [hereinafter "Young"], fell into an open elevator shaft while working on the construction of Wills Eye Hospital in Philadelphia. As a result of his fall, Young sustained serious bodily injury. The opening through which he fell was a twenty-inch wide gap in the drywall enclosure surrounding the elevator shaft. Young filed suit against the various parties responsible for the hospital's construction. Those parties and their respective roles are as follows:

(1) The City of Philadelphia, Trustee under the will of James Wills, Deceased--owner of the land;

(2) The Ballinger Company--architect;

(3) Turner Construction Company--general contractor/construction manager;

(4) Eastern Engineering & Elevator Co., Inc.--elevator subcontractor;

(5) GEMH 2, Inc.--drywall subcontractor;

(6) H.H. Robertson--Structural subcontractor; and

(7) The Williard Company--electrical subcontractor.

After several years of discovery, Appellees, H.H. Robertson [hereinafter "Robertson"] and The Ballinger Company [hereinafter "Ballinger"], filed motions for summary judgment. The trial court granted Robertson's motion on June 16, 1987, and Ballinger's motion on July 21, 1987. Thereafter, Eastern filed this timely appeal from those two Orders.

On appeal, Eastern raises two issues stated in its brief as follows:

I. THE LOWER COURT ERRED IN RULING THAT THE RECORD PRESENTS NO EVIDENCE UPON WHICH A NOTIFICATION DUTY, RELATIVE TO SAFETY VIOLATIONS[,] CAN BE PREMISED WITH RESPECT TO ARCHITECT[,] THE BALLINGER COMPANY.

II. THE LOWER COURT ERRED IN RULING THAT THE RECORD PRESENTS NO EVIDENCE UPON WHICH A NOTIFICATION DUTY, RELATIVE TO SAFETY VIOLATIONS, CAN BE PREMISED WITH RESPECT TO STRUCTURAL SUBCONTRACTOR, H.H. ROBERTSON COMPANY.

In determining whether the trial court erred in granting or denying a motion for summary judgment, this court must determine whether the "pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Pa.R.C.P. Rule 1035(b); Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 174-75, 507 A.2d 323, 331 (1986); Langan v. Harleysville Ins. Co., 376 Pa.Super. 372, 374, 546 A.2d 75, 76 (1988); Helinek v. Helinek, 337 Pa.Super. 497, 487 A.2d 369 (1985); Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985). "However, summary judgment may only be entered in those cases which are clear and free from doubt." Consumer Party of Pennsylvania, 510 Pa. 158, 174-75, 507 A.2d 323, 331; Langan, 546 A.2d at 76; Weiss v. Keystone Mack Sales, 310 Pa.Super 425, 456 A.2d 1009 (1983); Rossi v Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985). The moving party has the burden of proving that no genuine issue exists as to the material facts, and the record must be examined in the light most favorable to the non-moving party. Thompson v. Nason Hospital, 370 Pa.Super. 115, 535 A.2d 1177 (1988); Knecht v. Citizens and Northern Bank, 364 Pa.Super. 370, 528 A.2d 203 (1987). In making its determination, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Thompson, 370 Pa.Super. 115, 535 A.2d 1177; Knecht, 364 Pa.Super. 370, 528 A.2d 203. We shall not disturb the trial court's decision granting summary judgment unless there has been an error of law, or a manifest abuse of discretion. Dume v. Elkcom Co., Inc., 368 Pa.Super. 280, 533 A.2d 1063 (1987).

Eastern claims that the trial court erred in concluding that Ballinger did not have a duty to protect the workers from hazards on the Wills Eye Hospital construction site.

The Ballinger Company and the City of Philadelphia entered into a contract by which Ballinger would serve as general design architect for the Wills Eye Hospital project. Under the contract, Ballinger's only inspection responsibility was to make periodic visits to the hospital site to determine whether the work was proceeding in accordance with the contract documents and to familiarize itself with the progress and quality of the work. The contract had no provisions requiring Ballinger to supervise or control job safety or to implement safety precautions for the employees of the subcontractor or general contractor, or to halt construction if a defect was found in a contractor's work. Ballinger was not required to make exhaustive or continuous on-site inspections of the quality or quantity of the work. The contract contained no undertaking by Ballinger to assume any duty of supervision and control with regard to the actual construction of the building outside of periodic inspections to insure the quality of construction. The contract did not impose on Ballinger the responsibility for safety on the construction site. On the other hand, the general contractor and the subcontractors had the duty to protect the workers from the hazards on the construction site. Eastern has failed to set forth any articulable factual basis upon which Ballinger, as the overall design architect, was to provide temporary lighting and/or temporary barricades surrounding the service elevators during construction. It further appears that there was no contractual undertaking of that duty by Ballinger.

Our examination now turns toward the existence of a legal duty of Ballinger toward Young. Our review of the case law of the appellate courts of this Commonwealth fails to disclose any duty upon an architect to protect workers from hazards on the construction site absent an undertaking by the architect, by contract or conduct, of the responsibilities of the supervision and control of construction and the maintenance of safe conditions on the construction project. See Marshall v. Port Authority of Allegheny County, 106 Pa.Cmwlth. 131, 525 A.2d 857 (1987) (Engineer had no duty to worker injured during bridge demolition upon which finding of negligence could be based absent evidence engineer was responsible for assuring safe work conditions); Heath v. Huth Engineers, Inc., 279 Pa.Super. 90, 420 A.2d 758 (1980) (Engineer liable for negligence where contract between engineer and sewer authority provided that engineer supervise work, periodically inspect it, and assist in safeguarding owner against defects by contractor).

Generally, an architect may be held liable for negligence in failing to exercise the ordinary skill of his profession, which results in the erection of an unsafe structure whereby anyone lawfully on the premises is injured. 97 A.L.R.3d § 2(a) (1980); 5 Am.Jur.2d, Architects § 25.

There is a split of authority as to whether an architect is liable to workers for injuries or death resulting from hazardous working conditions on a construction site. Although there is no clear majority, it would appear that the weight of authority is on the side of non-liability. Chesapeake and Potomac Telephone Company of Maryland v. Chesapeake Utilities Corporation, Del. 436 A.2d 314 (1981); Coffey v. Derby Steel Company, Inc., 291 Md. 241, 434 A.2d 564 (1981); Krieger v. J.E. Greiner Company, 282 Md. 50, 382 A.2d 1069 (1978). It would appear that an architect who, acting as an independent contractor, plans and supervises construction work is under a duty to exercise ordinary care in doing so in order to protect any person who foreseeably and with reasonable certainty may be injured by his failure to do so.

There are generally two types of cases in which liability is imposed: (1) cases in which there are contractual provisions which impose such liability upon the architect, and (2) in the words of the Arizona Appeals Court,

"these cases have disregarded fundamental contractual principles in attempting to parlay general ... supervision clauses which give the ... architect a right to stop observed unsafe construction processes into a duty which is neither consistent with generally accepted usage nor contemplated by the contract or the parties."

Reber v. Chandler High School District # 202, 13 Ariz.App. 133, 135-36, 474 P.2d 852, 854-55 (1970) (emphasis in original).

The leading case which imposed liability on an architect is Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630 (1967). In holding the architect liable to the worker, the court stated that while there was no duty to specify what methods the contractor should use in building the structure, the terms of the contract between the owner and the general contractor gave the architect the right to insist upon a safe...