Pennsylvania Supreme Court Holds Contractors Liable For Injuries Caused By Their Work, Even Where The Contractors Had Finished The Project Years Before And The Property Owner Was Aware Of The Dangerous Condition
By: Carl L. Engel
May 31, 2023
Earlier this month, the Pennsylvania Supreme Court, in the case Brown v. City of Oil City, found that contractors could be liable to third parties who have been injured by dangerous conditions of the contractors' creation, even after the work has been completed and the site has been returned to the property owner's possession. After a woman fell and died on defective concrete stairs at a library, her husband sued the town that owned the building and the contractors that had designed and built the stairs. The trial court dismissed the claims against the contractors because they had completed their work years earlier and had turned control of the site back over to the town. The Supreme Court disagreed, however, finding that contractors can be liable for injuries caused by dangerous conditions that they have created, even if the property owner knew of the dangerous condition and did nothing. In light of this decision, contractors should work with property owners to remedy dangerous conditions of which they are notified, and should consult with their insurance professionals to close any gaps in coverage for past work performed.
In 2011, the City of Oil City, in northwestern Pennsylvania, contracted with Harold Best and Struxures, LLC (“HB&S”) to develop and implement plans for the reconstruction of a concrete staircase outside the town library. Oil City hired Fred Burns, Inc., to perform the reconstruction work, which entailed demolishing the old stairs and installing new ones.
In 2012, shortly after HB&S had completed its work, Oil City began to receive reports that the new concrete stairs had begun to degrade. On February 28, 2012, it notified HB&S that it considered the stairs dangerous and defective. It notified Fred Burns of the dangerous condition on September 12, 2013. None of them repaired the stairs, which continued to deteriorate and to become more dangerous.
On November 23, 2015, Kathryn Brown exited the library with her husband, David, and began to walk down the concrete stairs. While doing so, she tripped on one of the deteriorated stairs, fell, and struck her head, suffering a traumatic head injury. She died six days later.
Mr. Brown thereafter commenced a wrongful-death action against Oil City as owner of the stairs, as well as HB&S and Fred Burns for their work on them. At the conclusion of discovery, HB&S and Fred Burns filed motions for summary judgment, asking that the court dismiss Mr. Brown’s claims against them, because they were not in possession of the premises at the time the injury occurred and, therefore, owed no duty to anyone using the stairs.
The trial court observed that the Supreme Court of Pennsylvania had adopted Section 385 of the Restatement (Second) of Torts, which states in comment c that a “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.” Finding that the alleged defect to the stairs was discoverable, and in fact had been discovered by Oil City, the trial court granted the motions and dismissed the claims against HB&S and Fred Burns.
Mr. Brown appealed to the Commonwealth Court, which reversed the trial court unanimously. The Commonwealth Court reasoned that Oil City’s knowledge of the defective condition of the stairs did not relieve HB&S or Fred Burns of liability for Ms. Brown's death, because the discoverability of the defect is relevant only to the possessor who discovered the defect (here, Oil City), and is irrelevant to the liability toward “those who come upon the land,” who did not know of the defective condition. In other words, that Oil City had discovered the defect may have relieved HB&S and Fred Burns of their liability to Oil City, but it did not impact their liability to people using the staircase.
HB&S and Fred Burns appealed to the Supreme Court of Pennsylvania, which, on May 16, 2023, affirmed the Commonwealth Court’s decision. The Supreme Court held that Section 385 “impos[es] potential liability on contractors to third persons for all defective conditions of structures on land which they are responsible for creating through their repair work.” It found that “comment c serves only to clarify that the persons to whom a contractor is liable under Section 385 includes the possessor of land, when the dangerous condition is not readily discoverable by the possessor.” It does not limit a contractor’s liability to third persons “to only those situations in which he has created a dangerous condition that is not readily apparent or obvious.” Indeed, the Supreme Court observed that such a limitation would violate the fundamental public policy that “for any injury resulting from any person’s lack of elementary forethought, the law holds that person accountable.”
As a result of the Supreme Court’s decision, contractors in the Commonwealth have clear liability for claims for injuries arising from their past work. Of course, contractors should always take care to perform their work in a careful manner that does not cause injury to others, but also, if a contractor becomes aware of a dangerous condition caused by their work, it should immediately reach out to the landowner to work together to remedy the issue. Finally, contractors should review their insurance policies, to ascertain whether there are any gaps in coverage for work performed in the past, and should contact their insurance professional to close any that they find.