$2.5 Million Judgment Reversed In Pennsylvania Utility Pole Painter’s Case
An intermediate appellate court in Pennsylvania reversed a $2.49 million judgment in favor of a worker for injuries sustained after falling 40 feet while working as an employee of an independent contractor for a utility. The lower court judgment was against the utility, which appealed on the grounds that the trial court erred by not granting its motion for judgment notwithstanding the verdict. The appellate court agreed with the utility because the worker failed to establish that the utility retained control over the manner, methods, and means of the work of the worker’s employer (the independent contractor) sufficient to overcome the general rule in Pennsylvania that an owner owes no duty to the employees of an independent contractor.
The court explained that Pennsylvania case law requires that the control required to implicate the exception to the general rule against liability in this situation can be demonstrated in two ways: contractual provisions giving the premises owner control over the manner, method, and operative details of the work, or actual exercised control over the work. In this case, the contract between the utility and the worker’s employer contained a number of “quality specifications” regarding the job the independent contractor was hired to complete but they had nothing to do with the specifics of the worker’s accident. For example, there was no evidence that the utility instructed or directed the worker’s employer how to tie off to the utility poles, how to climb the poles, or which equipment to use. Instead, the contract stated that the “Contractor shall remain solely responsible for the safe performance of the Work under this Contract.”
The worker argued that the utility had control over safety issues and imposed certain safety requirements for the job site, but the court pointed to prior Pennsylvania cases indicating that liability is not imposed on a property owner who retains “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.” The utility’s contractual right to undertake safety performance audits from time to time did not change the court’s opinion.
The worker also argued that the utility’s “green tag” procedure, which ensured that the independent contractor’s workers did not come into contact with live electrical lines while paining the poles, amounted to the actual exercise of control over the work. The court disagreed. The court explained that the green tag permit simply indicated to the independent contractor’s workers which poles were safe for the workers to perform their work, by whatever means they saw fit. Quoting an earlier Pennsylvania Supreme Court case, the court opined, “it would be a novel, if not absurd, interpretation of [the Restatement on this area of the law] if an independent contractor . . . could run amok at the work site without any limitations and without consideration of consequences.”
The court remanded the case for the trial judge to enter a judgment notwithstanding of the verdict.
