Pennsylvania Supreme Court Looks Back In Time To Resolve a Matter of Control: Property Owner Liability for Injuries Sustained By an Independent Contractor

Pennsylvania – Premises Liability (Landowner Liability)

In Pennsylvania, a property owner who hires an independent contractor is generally not liable for on-the-job physical injuries suffered by an independent contractor's employees. The most common exception to this rule arises when an employer retains control over the "means and methods of the [independent] contractor's work." This "retained control" exception is well established in Pennsylvania. This exception was recently tested and re-affirmed in Beil v. Telesis Construction, Inc., 11 A.3d 456, 2011 Pa. LEXIS 106 (Pa. 2011).

The facts of Beil are relatively common to most construction projects. Lafayette College ("College") contracted with general contractor Telesis Construction, Inc. ("Telesis") to renovate a portion of the Lafayette campus. Both the College and Telesis employed their own onsite project managers. Telesis subcontracted with Kunsman Roofing and Siding ("Kunsman") to complete certain roofing work. The College separately contracted with Masonry Preservation Services, Inc. ("MPS") to do restoration stone work at the campus. David Beil, the plaintiff, was a roofer employed by subcontractor Kunsman.

Mr. Beil suffered serious injuries after he fell from a ladder approximately 30 feet to the ground. The ladder was part of the scaffolding erected by MPS. Mr. Beil subsequently sued the College, Telesis and MPS for his injuries. The College argued it was not liable for Mr. Beil's injuries because it did not control Kunsman's work. Following a trial, the jury found the College liable and awarded Mr. Beil damages for his injuries. The College appealed to the Superior Court. The Superior Court thereafter overturned the jury's findings, concluding that the College was not liable under the "retained control" exception, i.e. the College did not control the operative details of Kunsman's work. Mr. Beil eventually appealed that decision to the Supreme Court of Pennsylvania.

The Supreme Court (which eventually decided in favor of the College) reiterated the longevity of the retained control doctrine by recognizing the fact that, "[f]or over 100 years, the accepted and general rule regarding liability in our Commonwealth has been that a landowner who engages an independent contractor is not responsible for the acts or omissions of such independent contractor or his employees." The Court showed how untenable any other conclusion would be by asking, "[H]ow can the other party control the contractor who is engaged to do the work, and presumably knows more about doing it than the man who by contract authorized him to do it? Responsibility goes with authority."

Despite the general rule's obvious protections, it is important not to lose sight of the fact that the general rule does not insulate employers from liability in every situation. An employer may be liable to an independent contractor (or its employees) if the employer's ability and right to control the independent contractor "go[es] beyond a general right to order, inspect, make suggestions, or prescribe alterations or deviations, but there must be such a retention of the right of supervision that it renders the contractor not entirely free to do the work in his own way." Practically speaking, an employer may be liable in two situations: (1) if contractual provisions give the employer or landowner control over the "the manner, method and operative details of the work; or (2) it can be shown "that the landowner exercised actual control over the work." Pennsylvania courts have generally decided "the hiring party did not exercise sufficient control over the contractor to impose liability on the hiring party for the contractor's employee's injury."

Mr. Beil argued that the College was liable because it exercised control over safety matters and controlled access to certain parts of the College's campus during the renovation. He also pointed to contract provisions where the general contractor agreed to comply with safety rules established by the College in order to prevent injury or to be in strict compliance with applicable law. Mr. Beil argued that the College exercised control over Kunsman and its employees by requiring additional safety standards. The Supreme Court rejected these arguments.

Instead, the Court held "a property owner retaining a certain degree of authority over safety issues, such as supervising and enforcing safety requirements, and even imposing its own safety requirements at a work site, [that] does not constitute control for purposes of imposing liability."

The Court next addressed Mr. Beil's argument that the College retained control of the work by prohibiting access to certain portions of the campus. Specifically, the College restricted access to the engineering building where the renovations occurred by limiting access to occupied portions of the building and preventing access to certain elevators and stairwells. The construction workers were not permitted to use school bathrooms due to concerns about tracking mud and smoking in those areas. The Court held that these actions by the College were not "conduct which evidences control over the manner, methods, means or operative detail in which the work is performed."

Simply put, there is sufficient "control" to trigger employer liability if the contract enables the employer to direct the way the independent contractor works or if the employer actually directs the independent contractor's work. Instructing an independent contractor "what to do is not the same as directing a contractor how to do it."

*Allison is an associate in our Harrisburg, Pennsylvania, office. She can be reached at 717.651.3538 or amdomday@mdwcg.com.

Defense Digest, Vol. 17, No. 2, June 2011