The Pennsylvania Supreme and Superior Courts Clarify the “Retained Control” Exception to General Rule of Landowner’s Nonliability for Independent Contractors

By Michael A. Karaffa, Esq.*

Pennsylvania has long embraced the general rule that a landowner who engages an independent contractor is not liable for the independent contractor’s negligence. Plaintiffs can get around the rule, however, if the landowner kept sufficient control over the worksite under the “retained control” exception. By affirming Nertavich v. PPL Electric Utilities, 124 3.Ad 734 (Pa. 2015) (per curiam), the Pennsylvania Supreme Court has made it clear that the degree of control must be considerable for this exception to apply.

The Pennsylvania Supreme Court upheld the Pennsylvania Superior Court decision without issuing an opinion. In Nertavich v. PPL Elect. Utils., 100 A.3d 221 (Pa.Super. 2014), the plaintiff worked for an independent contractor, QSC Painting, which was hired by the defendant, PPL, to paint its 90-foot tubular steel poles.

Working 40 feet above the ground, the plaintiff was attached to a ladder with a body harness when his harness became disconnected, and he plummeted to the ground. The plaintiff landed on his feet, bursting several disks in his lumbar spine and fracturing his feet, a knee, his right femur and his right hip. He sued PPL and the manufacturer of the ladder.

At trial, the jury found that the plaintiff was 49 percent causally liable for his injuries, PPL was 51 percent causally negligent, and the ladder design was not defective. A verdict in the amount of $2,494,542.35 was later entered against PPL.

PPL timely moved for judgment notwithstanding the verdict (j.n.o.v.) or a new trial. The trial court denied PPL’s motions, and PPL appealed to the Superior Court.

Among other issues raised on appeal, PPL argued that it was not liable for injuries sustained by an employee of an independent contractor. The trial court had rejected this position because it found that the retained control exception kept PPL from avoiding liability.

In reviewing Pennsylvania case law, the Superior Court explained that the degree of control required to hold an owner liable for a subcontractor’s injuries “must go beyond a general right to order, inspect, make suggestions, or prescribe alterations or deviations” but “must be such a retention” of control “that it renders the contractor not entirely free to do the work in his own way[.]” The court explained that control can be shown in one of two ways: (1) contractual provisions giving the owner control over the manner, method and operative details of the work; or (2) evidence that the owner exercised actual control over the work.

The Superior Court noted that PPL provided detailed specifications for the manner in which the painting was to be carried out. In addition, PPL assigned an “authorized representative,” or field agent, to stay in daily contact with QSC and to provide oversight for safety on the job. This authorized representative had the authority to stop QSC’s work for any violation.

The court then observed that PPL’s specifications for painting did not include safety requirements. Instead, they related to the type of paint to be used, the method of applying a uniform finish and the method of making spot repairs. The court observed that none of these specifications were at play in the accident.

More specifically, PPL never “instructed or directed QSC workers how to tie off the pole, how to climb the pole, or which equipment to use.” Notably, the contract with QSC expressly gave QSC the responsibility for “all climbing assist and rigging equipment necessary to complete this painting contract in an efficient manner.”

As a result, the Superior Court found that PPL’s contract with QSC did not establish that PPL retained control over the worksite. Likewise, the Superior Court rejected the plaintiff’s argument that PPL retained actual control of the worksite through its authorized representative, who worked closely as liaison between QSC and PPL.

The court noted that PPL had the right to stop work due to any safety violation and to monitor the painting as it was carried out. By the terms of its contract, the authorized representative was to be the “daily source of contact to the Contractor in the areas of any questions, materials, quality assurance, general safety, work procedures and schedule.”

In addition, the court acknowledged that PPL had supplied the ladders that were used on the jobsite. However, the court noted that this was only done after QSC was unable to furnish ladders itself. Moreover, PPL specifically told QSC that, while it was providing ladders, it was QSC’s responsibility to inspect them and ensure they were suitable for the job.

As a result, the court found that PPL did not retain control because its actions were well within the safety oversight that the Pennsylvania Supreme Court has found acceptable. In support, the court recalled the case of Beil v. Telesis Construction, Inc., 11 A.3d 456 (Pa. 2011) in which the Supreme Court explained that supervising and enforcing safety requirements does not constitute control for the purposes of imposing liability.

Moreover, testimony at trial showed that QSC, not PPL, determined how to climb the poles on the jobsite. The court emphasized that QSC was the expert with 16 years’ experience in industrial painting and previous work for power companies such as PPL.

As a result, the Superior Court found that PPL did not retain actual control of the worksite. It concluded that the trial court erred in denying PPL’s motion for j.n.o.v.

*Mike is a shareholder in our Pittsburgh, Pennsylvania office. He can be reached at 412.803.1141 or makaraffa@mdwcg.com.

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_{Defense Digest, Vol 22, No. 1, March 2016}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}