Out-of-possession contractor who creates condition that causes physical injury to third party may be liable to third party even though landowner was aware of condition and previously accepted contractor’s work.

In this Commonwealth Court level wrongful death case, the trial court granted motions for summary judgment filed by the defendant architect, contractor and subcontractor. The defendants were involved with the construction of steps at the defendant-owner’s property. The defendant-owner accepted the construction of the steps but later requested repairs be made due to their deterioration, which was prior to the plaintiff’s fall. 

The trial court, relying on Section 385 of the Second Restatement of Torts and Gresik v. PA Partners, L.P., 989 A.2d 344 (Pa. Super. 2009), 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.’” 

The Commonwealth Court court reversed, holding that Section 385 and Gresik only applies to bar claims against the contractor by the owner/possessor for non-latent defects, not third party claims. 

The import of this ruling is that a contractor may be liable for creating a dangerous condition of which its client is aware but which its client chooses not to remediate. 
 

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