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Pennsylvania Supreme Court Refuses To Adopt Interpretation Of Section 385 Of Restatement (Second) Of Torts That Limits Liability Of Contractors To Third Parties To Latent Defects

In Brown v. City of Oil City, 2023 WL 3471043 (Pa. May 16, 2023), the Supreme Court of Pennsylvania held that an out-of-possession contractor that has created a dangerous condition through work performed for a possessor of land who has accepted the contractor’s work may be liable to all persons suffering injuries caused by the dangerous condition, even if that condition is obvious or apparent in nature.

The case centered around the Oil City Library (“Library”), owned by Oil City (“City”), which opened in 1904. By 2011, the condition of the concrete stairs leading to the entrance of the Library had significantly declined, and the City contracted with Harold Best (“Best”) and Struxtures, LLC (“Struxtures”) for design services and Fred Burns, Inc. (“Burns”) for reconstruction services (collectively, “Contractors”). The Contractors completed design and installation of the new concrete stairs by the end of 2011, and within a few months, the City began receiving reports of imperfections and degradation of the concrete surface of the stairs.

In September 2013, the City informed Burns it considered his defective workmanship to have created a dangerous condition of the stairs. The condition of the stairs continued to worsen over the next two years, but no repairs were made, and no warning of their dangerous condition was provided to the public.

On November 23, 2015, Kathryn Brown tripped on a deteriorated section of the concrete stairs, struck her head, and ultimately died of a traumatic head injury six days later. Her husband, David Brown (“Brown”), commenced a wrongful death suit. The Amended Complaint named both the City and Contractors as defendants.

Contractors each filed a motion for summary judgment after discovery was completed. Contractors argued they owed no duty to third persons, as they were not in possession of the premises at the time the injury occurred. Brown’s counterargument identified Section 385 as establishing a legal duty on behalf of Contractors. The trial court considered Contractors’ motions together and granted them. In its opinion accompanying the order, the trial court acknowledged the competing interpretations of Comment C to Section 385 between the Commonwealth and Superior Courts of Pennsylvania.

Brown appealed the order granting summary judgment for Contractors to the Commonwealth Court. The Commonwealth Court reversed the trial court. Contractors sought allowance of appeal to the Supreme Court of Pennsylvania, which was granted.

The question before the Supreme Court of Pennsylvania was whether Section 385 of the Restatement (Second) of Torts imposes liability on a contractor to a third party whenever the contractor, during the course of his work for a possessor of land, creates a dangerous condition on the land that injures the third party, even though, at the time of the injury, the contractor was no longer in possession of the land, and the possessor was aware of the dangerous condition. The Supreme Court of Pennsylvania answered in the affirmative.

The Supreme Court of Pennsylvania examined the analogous rules regarding contractor liability for defective chattel and found no distinction, for purposes of the imposition of liability, between a defective condition that is obvious or hidden. The Supreme Court of Pennsylvania concluded that a contractor’s liability under Section 385 does not hinge on whether the defective condition it caused is latent or patent. Rather, it found Section 385 imposes 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 is essential that contractors performing work in Pennsylvania understand the scope of potential liability they may be subjected to under the Supreme Court of Pennsylvania’s interpretation of Section 385 and Comment C. As in this case, a contractor may be liable to a third party for injuries sustained as a result of a defective condition created by his work long after the contractor leaves the site and despite knowledge of the defect by the possessor of land.