by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
On this blog I have occasionally written about the duty owed by landowners to, among others, visitors and trespassers and folks walking along a landowner's sweetgum-spiky-seed-pod-riddled sidewalk. In Pisieczko v. The Children's Hospital of Philadelphia, the Appellate Division addressed a similar situation — the duty owed by a landowner to an independent contractor performing work on its property.
In Pisiaczko, plaintiff was an independent contractor who worked for defendant "doing odd jobs, such as repairing different fixtures, changing lights, and installing tiles." In this capacity, he was hired by defendant to repair lights, which were "affixed to wooden poles" and located in one of defendant's parking lots. Defendant provided no guidance or supervision to plaintiff. Before beginning his work, plaintiff pushed on one of the wooden poles to make sure it was sturdy. When it did not move, he took a ladder, leaned it against the pole, and extended it to approximately two feet below the light fixture. He secured the ladder with straps around the pole. Unfortunately, while plaintiff was on the ladder testing the fixture, the pole broke. Plaintiff jumped off the ladder from about 20 feet to avoid falling into barbed wire. He injured his heel in the process.
Plaintiff sued. He alleged that the pole was rotten inside, which caused it to break. (The parties agreed that the rot was not visible before the pole broke.) Defendant moved for summary judgment, arguing that it was not liable for plaintiff's damages because the decision to place the ladder against the pole was incident to the specific work plaintiff was hired to perform. The trial court agreed and granted the motion. Plaintiff appealed.
On appeal, the Appellate Division affirmed. It observed that a landowner generally owes its invitees a duty to use reasonable care to make the premises safe. This extends to independent contractors that the landowner hires, and includes the duty to make a reasonable inspection of the property to discover any defective or hazardous conditions. But, there is an exception to this duty, which the court described as follows: "The duty to provide a reasonably safe working place for . . . an independent contractor does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform." Stated differently, a landowner is not obligated to remove "operational hazards" that are "obvious and visible" to the independent contract and which are part of, or incidental to, the work the independent contractor was hired to perform. The rationale behind this exception is that "the landowner may assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly."
In Pisiaczko, it might seem like the trial court got it wrong because the rot inside the pole was not "obvious and visible" to plaintiff. But, both the trial court and the Appellate Division held that the appropriate focus was on the need to climb the pole, not the condition of the pole: "[T]he risk of reaching the lights at the top of the pole was incidental to fixing the light . . . [T]he hazard was ascending the pole, not the rotten wood in the pole." This hazard, which presumably included the risk that plaintiff might fall for one reason or another, was "an obvious risk because plaintiff inspected the pole for structural integrity before he ascended it." Moreover, plaintiff chose the method to ascend the pole without any guidance or input from defendant. Therefore, the Appellate Division held that plaintiff's injuries were caused by a hazard incident to the work he was hired to perform and therefore fell within the exception to the general rule that a landowner owes independent contractors a duty to provide a reasonably safe working place. As the Appellate Division bluntly noted at the end of its opinion: "Plaintiff was hired to repair the lights in the parking lot . . . Plaintiff was injured because of a hazard created by doing the work he was hired to perform."