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Contractors Beware: PA Court Held Open And Obvious Defense Inapplicable To Contractor

September 17, 2021

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<p style="text-align: justify;">A recent decision from the Pennsylvania Superior Court highlights the problem with rushing to judgment in the evaluation of premises liability claims. See<em> <a href="">Miller</a> v. WRDH Holdings,</em> LLC, No. 3543 EDA 2019 (Pa. Super. Ct. Sept. 7, 2021). <em>Miller </em>involved injuries allegedly sustained when the plaintiff fell while attempting to walk around a temporary sidewalk closure sign. The City of Philadelphia required the sign when it issued the permit to the contractor performing construction work in the area. WRDH Holdings, Inc. (“WRDH”), the contractor performing the work and the entity responsible for placement and maintenance of the temporary sign, was the only remaining defendant at the time of trial. Although Plaintiff admitted that she observed the sign as she approached the sidewalk, she denied seeing the base of the sign and claimed that she was unable to get around the base due to pedestrian traffic. The testimony of other witnesses established four feet of space for pedestrian traffic around the sign.</p>
<p style="text-align: justify;">After Plaintiff called her liability expert, and before Plaintiff closed her case, WRDH moved for an entry of nonsuit asserting Plaintiff could not prevail because WRDH owed no duty to warn of open and obvious conditions. WRDH’s argument was premised on application of the Restatement (Second) of Torts § 342 and 384. Since these two sections for the basis of the appeal, we discuss each section here.</p>
<p style="text-align: justify;">Pursuant to Section 342, a possessor of land is subject to liability for physical harm to licensees by a condition on the land only if all of the following conditions are met:</p>
<p style="text-align: justify;">(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger; and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved; and
(c) the licensees do not know or have reason to know of the condition and the risk involved.</p>
<p style="text-align: justify;">Restatement (Second) of Torts §342.</p>
<p style="text-align: justify;">Section 384 extends the protections of Section 342 to individuals/entities who, on behalf of the possessor, erect a structure or create a condition on the land. In such circumstances, the individual/entity performing such work is subject to the same liability as the possessor. See Restatement (Second) of Torts §384.</p>
<p style="text-align: justify;">WRDH asserted that it was entitled to the same protections as the possessor and, as such, owed no duty to plaintiff because the condition was open and obvious. Plaintiff argued that Section 384 was inapplicable because WRDH was not the owner or possessor of the premises and was not working on behalf of the owner/possessor of the premises. Instead, Plaintiff asserted Section 386 controlled. The trial court granted the nonsuit and thereafter denied Plaintiff’s motion to remove the nonsuit. The Plaintiff appealed.</p>
<p style="text-align: justify;">Four issues were raised on appeal. First, whether the trial court erred in granting the nonsuit. Second, whether the trial court abused its discretion or otherwise erred in denying the motion to vacate the nonsuit. Third, whether the trial court erred in labeling the Plaintiff as a licensee and refusing to apply §386 of the Restatement. Finally, whether the trial court erred in finding that Plaintiff recognized the hazard, i.e. that the hazardous condition was open and obvious. The Superior Court affirmed all four questions and reversed and remanded.</p>
<p style="text-align: justify;">In evaluating the issues, the Superior Court first considered the trial court’s written opinion. The trial court believed, “although not clearly established,” that the defendant was the occupier of the land and the plaintiff a licensee. Pursuant to Section 342c, the plaintiff must show that she did not know and had no reason to know of the condition or the risk of harm from the temporary sign. The trial court’s decision relied on long standing precedent in Pennsylvania regarding application of the open and obvious doctrine. See e.g. <em>Carrender v. Fitterer,</em> 469 A.2d 120, 123 (PA. 1983). However, as the Superior Court noted, <em>Carrender</em> is presupposes that WRDH is the owner or possessor of the land. The evidence established at trial demonstrated that WRDH was neither the owner nor possessor. Therefore, the Superior Court opined, the trial court committed reversible error not only in deciding questions of fact which should have been left for the jury, but also in reaching the conclusion as to the defendant’s status.</p>
<p style="text-align: justify;">The Superior Court further held that the trial court erred in considering Restatement (Second) of Torts § 384 because there was no evidence that WRDH was acting on behalf of the owner or possessor in placing the sidewalk closure sign.</p>
<p style="text-align: justify;">The Superior Court agreed with the Plaintiff/Appellant, finding that the trial court erred in failing to apply Restatement (Second) of Torts §386. Section 386 provides as follows:</p>
<p style="text-align: justify;">Any person, except the possessor of land or a member of his household or one acting on his behalf, who creates or maintains upon the land a structure or other artificial condition which he should recognize as involving an unreasonable risk of physical harm to others upon or outside of the land, is subject to liability for physical harm thereby caused to them, irrespective of whether they are lawfully upon the land, by the consent of the possessor or otherwise, or are trespassers as between themselves and the possessor.</p>
<p style="text-align: justify;">Restatement (Second) of Torts §386. Section 386 does not contain language regarding open and obvious conditions and, as such, WRDH was not entitled to assert same as a defense.</p>
<p style="text-align: justify;">The decision should serve as a warning to practitioners and insurance carriers handling premises liability claims in Pennsylvania. A rush to judgment regarding the status of any party or the nature of the alleged hazardous condition could come back to bite you. A methodical approach ensures proper adjustment and defense of these claims.</p>
Please contact <a href="">Jennifer Seme</a> with any questions.


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