Liability of Out-of-possession Contractor where Dangerous Conditions known to Possessor

Brown v. Oil City, 263 A.3d 338 (Pa. Cmwlth. 2021) (unreported), allocatur granted Feb. 22, 2022, appeal docket 6 WAP 2022

Katheryn Brown slipped and fell on the steps of the Oil City Library and sustained a fatal head injury. Her husband, David Brown, individually and on behalf of his wife’s estate, brought a trespass action against the city, the contractor in charge of concrete work on steps, the subcontractor, and the architectural firm, alleging poor construction or maintenance of library steps caused Mrs. Brown’s death. Commonwealth Court summarized the background as follows:

The amended complaint alleges that in 2011, Oil City, which owned Oil City Library, contracted with Struxures and Burns [(the Contractor)] to rebuild the concrete steps to the library entrance. Struxures was responsible for the design and oversight of the project “through the completion of construction as the owner’s representative and agent.”  Burns constructed the concrete steps, and it subcontracted with Macon to install blue stone facing and cheek wall caps on the steps. 

Soon after completion of the project, the concrete in the library steps began to degrade. Oil City became concerned about the condition of the steps and on February 28, 2012, notified Struxures that it considered the steps defective and dangerous. As of September 12, 2013, Oil City had also informed Burns of the defects in its work. 

The amended complaint alleges that from February 28, 2012, through November 23, 2015, the library steps continued to deteriorate, thereby increasing the risk of harm to members of the public using the steps. Neither Oil City nor its contractors made repairs to the steps. Nor did they warn the public about the dangerous condition of the steps. 

On November 23, 2015, as Decedent and Brown walked down the library steps, Decedent fell and sustained a severe head trauma. Six days later, Decedent died from her injuries. Brown seeks damages against the defendants for negligence, wrongful death and Decedent’s pain and suffering.

On July 1, 2019, Struxures filed a motion for summary judgment, asserting that it had no duty to Decedent as a non-possessory contractor. On July 16, 2019, Burns filed a nearly identical motion for summary judgment.

On July 29, 2019, Brown answered the motions. Brown argued that (1) a contractor’s liability for injury caused by an artificial condition does not turn on the contractor’s continued possession; (2) the moving defendants relied on decisions from the Superior Court instead of the controlling and directly contrary precedent of this Court and the Pennsylvania Supreme Court; (3) there were material facts in dispute; and (4) Section 383 of the Restatement (Second) of Torts, RESTATEMENT (SECOND) OF TORTS § 383 (Am. Law Inst. 1965), afforded another basis upon which Struxures and Burns owed a duty to third parties, including Decedent.

Slip op. at 2-4 (internal record citations omitted). The trial court granted the motions for summary judgment. Commonwealth Court summarized the trial court’s opinion as follows:

In reaching its decision, the trial court construed Section 385 of the Restatement (Second) of Torts to limit the liability of a contractor who no longer has possession of the property that caused the injury. The trial court acknowledged that in Gilbert [v. Consolidated Rail Corporation, 623 A.2d 873, 875 (1993)], this Court construed Section 385 of the Restatement to expand, not limit, a contractor’s liability for a dangerous condition that it has created. However, the trial court agreed with the Superior Court’s decisions in [Gresik v. PA Partners, L.P., 989 A.2d 344 (Pa. Super. 2009) (Gresik I)], and in Longwell v. Giordano, 57 A.3d 163 (Pa. Super. 2012). In those decisions, the Superior Court held that after a contractor leaves the property, it can be held liable in negligence to a third party only “if the contractor created a danger that was unlikely to be discovered by the possessor.” Trial Court Op., 10/25/2019, at 6 (emphasis in original).

The trial court found that the danger created by Burns and Struxures was not latent but well known to the possessor. Indeed, Oil City had brought the defective condition of the library steps to the attention of the contractors well before Decedent’s fall. The trial court also reasoned that Burns and Struxures could not have unilaterally repaired their work without Oil City’s approval. For these stated reasons, the trial court granted summary judgment to Burns and Struxures.

Slip op. at 4. Brown appealed the trial court’s grant of summary judgment to Commonwealth Court, arguing that the trial court erred in applying Gresnik I rather than Gilbert, which held that a contractor that creates the dangerous condition on the property remains liable to “others” even after the contractor leaves the premise, to find that the contractor could not be held liable because the dangerous condition was well-known. The contractor responded that the trial court was free to follow Superior Court precedent over Gilbert, but alternatively urged Commonwealth Court to revisit its decision in Gilbert.

Commonwealth Court reversed the trial court’s grant of summary judgment as to the contractor on the basis that the trial court failed to apply the proper standard of liability as set forth in Gilbert. Commonwealth court explained that different constructions of Comment c to Section 385 of the Second Restatement of Torts have led to the contrary holdings in Gilbert and Gresik I. Specifically, Comment c states, in relevant part:

A manufacturer of a chattel who puts it upon the market knowing it to be dangerous and having no reason to expect that those who use it will realize its actual condition is liable for physical harm caused by its use (see § 394). As the liability of a servant or an independent *343 contractor who erects a structure upon land or otherwise changes its physical condition is determined by the same rules as those which determine the liability of a manufacturer of a chattel, it follows that such a servant or contractor who turns over the land with knowledge that his work has made it dangerous in a manner unlikely to be discovered by the possessor is subject to liability both to the possessor, and to those who come upon the land with the consent of the possessor or who are likely to be in its vicinity.

Slip op. at 6 (quoting RESTATEMENT (SECOND) OF TORTS § 385 cmt. c (Am. Law Inst. 1965) (emphasis added by Commonwealth Court)). While Commonwealth Court acknowledged that Superior Court precedent provides persuasive authority, Commonwealth Court is “compelled as an intermediate appellate court to follow our own precedent when it conflicts with the precedent of the Superior Court,” thus, because “Gilbert is the only case decided by this Court relevant to this appeal,” Commonwealth Court found “no reason to depart from its holding or its logic.” Slip op. at 12. Additionally, Commonwealth Court reasoned that Gresik I is inapposite because it concerned the liability of a possessor of land, and not the liability of a contractor acting on the possessor’s behalf such that Section 385 did not apply. Commonwealth Court reasoned:

As we explained in Gilbert, Section 385 extends a contractor’s liability to third persons who are injured by an artificial condition of the land created by the contractor after the possessor has accepted the completed work. Nowhere does Section 385 state that for liability to attach the artificial condition must be latent. Comment c to Section 385 of the Restatement may limit the contractor’s liability to the possessor to the situation where the defect is latent. Otherwise, the possessor cannot hold the contractor liable in negligence. However, the fact that Oil City was aware of the defective nature of the library steps is irrelevant to the liability of Burns and Struxures to “others.” At most, this fact may relieve them of liability to Oil City, the possessor.

The trial court erred. Section 385 of the Restatement governs Brown’s amended complaint against Burns and Struxures. “[O]n behalf of the possessor of land,” Burns and Struxures created a “condition thereon and [are] subject to liability to others … for physical harm caused to them by the dangerous character of the structure or condition after [their] work has been accepted by the possessor….” RESTATEMENT (SECOND) OF TORTS § 385 (Am. Law Inst. 1965). Decedent was physically harmed. It is for the jury to decide whether the condition of the library steps was of a dangerous character and caused her physical injury and death.

Slip op. at 13.

The Supreme Court granted allocatur to consider the following issue:

Whether an out-of-possession contractor cannot be subject to liability under Section 385 of the Restatement of Torts for injuries to third-parties where the dangerous condition of the structure erected by the contractor is well known to the possessor of land?


For more information, contact Kevin McKeon or Dennis Whitaker.