Multi-Million Dollar Jury Verdict in Construction Case Deconstructed by Superior Court (Non-Precedential)

In the non-precedential case of D’Amico v. Covanta Holding Corp., 692 EDA 2023 (Pa. Super. Feb. 28, 2024 Lazarus, J., Panella, P.J.E., Colins, J.)(Op. by Colins, J.), the Pennsylvania Superior Court ruled that a new trial should be granted in a construction injury case in which the jury had awarded $6.4 million to the Plaintiff.

The Pennsylvania Superior Court held that the trial court’s jury charge improperly omitted an instruction on a key liability issue, rendering the jury instructions misleading and inaccurate.

More specifically, the Superior Court ruled that the trial court’s jury charge completely omitted any instruction on the issue on which the Defendant had sought an instruction, that is, on the issue whether retention of some authority over safety and enforcement of safety requirements can constitute the kind of retention of control sufficient to find liability under Pennsylvania law.  The appellate court found that this omission by the trial court was an error of law on the central liability issue in the case.

As such, the case was remanded for a new trial.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


Source: “PA. Appeals Court Tosses $6.4 M judgment based on faulty jury instruction,” by Aleeza Furman. Pennsylvania Law Weekly (Feb. 29, 2024)

Court Addresses Retained Control Doctrine in Workplace Accident Case

In the case of Covanta v. D’Amico, Nov. Term 2019, No. 01334 (C.P. Phila. Co. June 22, 2023 Bright, J.), a trial court issued a Rule 1925 Opinion regarding its denial of post-trial motions in a third party liability case arising out of a workplace accident.

Of note, among the sixteen (16) claims of error addressed by the trial court were issues regarding whether a landowner Defendant who engages an independent contractor to perform work on the landowner’s property is liable for injuries to the independent contractor’s employees. In this regard, the trial court reviewed the doctrine of retained control.

After reviewing the record before it, the court found that the evidence established that the landowner did indeed regain control over the project which resulted in the Plaintiff’s injuries. In this regard, the court pointed to the landowner’s long-term history of control over the contractor’s various projects, the terms of the contract with the contractor, and the events involved in the subject incident.

The court pointed to the Restatement (Second) of Torts relative to the retained control exception to non-liability of a landowner who engages an independent contractor who has an employee injured on the job.

Under the retained control exception, one who entrusts work to an independent contractor, but who retains control of any part of the work, remains subject to potential liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. 

 The court noted that the central issue to be determined in this regard is whether the employer/landowner retained control of the means and the methods of the work to be completed. In other words, did the employer/landowner successfully delegate the duty to the independent contractor to complete the entire job, or did the employer/landowner retain certain authority over the job.

As noted, the trial court had denied post-trial motions in this case.  

Anyone wishing to review a copy of this Opinion may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 29, 2023).

Retained Control Theory Used By Court to Deny Landowner's Motion For Summary Judgment in Premises Liability Case

In the case of Miller v. Kinley, No. CV-20-1214 (C.P. Lyc. Co. May 5, 2022 Tira, J.), the court denied a Motion for Summary Judgment filed by Defendant landowners in the case in which a Plaintiff who was hired to cut down a large tree on the property was injured in the process.

According to the Opinion, the Plaintiff alleged, and offered proof, that the Defendant landowners were present at the time of the incident and that they directed the Plaintiff on the manner in which to cut the tree. The Defendants also specifically indicated the area where the tree was to be dropped. It was therefore alleged by the Plaintiffs that the Defendant landowners had retained control of all, or at least, a portion, of the work that the Defendants had requested the Plaintiff to perform.

In his Opinion, Judge Tira referred to the Retained Control Theory found under the Restatement (Second) of Torts §414 to rule that the evidence raised issues of fact that allow the Plaintiff to overcome the Defendant’s Motion for Summary Judgment on the liability issues presented.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 6, 2022).

Source of image:  Photo by Jacky on www.pexels.com.

Peculiar Risk and Retained Control Doctrines Applied in Support of Motion for Summary Judgment

In the case of Kinlaw v. Pennsylvania American Water Co., No. 17-CV-6738 (C.P. Lacka. Co. Sept. 15, 2020 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted summary judgment in favor of the Defendants in a slip and fall case in a matter in which the Plaintiff’s attorneys had previously withdrawn from their representation of the Plaintiff and in which the pro se Plaintiff did not secure other counsel or appear at the argument on the Motion for Summary Judgment. 

According to the Opinion, this matter arose out of a slip and fall that occurred at the Elmhurst Dam in Roaring Brook Township. 

At the time of the accident, the Pennsylvania American Water Company owned the dam and a Co-Defendant was a general contractor for a restoration project that was being performed on the dam. 

The general contractor had hired Century Security Systems as an independent contractor to provide security at the dam site. The Plaintiff alleged that she was working for Century Security Systems as a security guard at the dam when she slipped and fell as she exited her vehicle. 

Before the court was a Motion for Summary Judgment filed by the Pennsylvania American Water Company and the general contractor in which it was asserted that the Plaintiff’s work location and conditions were controlled exclusively by her employer, Century Security Services, and that, as such, liability could not be imposed upon the Pennsylvania American Water Company or the general contractor under either the “retained control” or the “peculiar risk” doctrines.

After reviewing these doctrines in detail and applying the law to the facts presented, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas found that the Plaintiff’s claims were barred as a matter of law. 

More specifically, the court found that there was no evidence that the Plaintiff’s fall was caused by a condition that was different from the customary risks associated with security work or that any such risk was allegedly foreseeable to the moving Defendants at the time the contract with the security company was executed. The court also noted the record lacked any evidence or even any suggestion that the moving Defendants possessed any form of superior knowledge or information would somehow place them in a better position to appreciate any risks presented by any alleged dangerous condition involved.   

Anyone wishing to review a copy of this decision may click this LINK.

If you have a trip and fall or a slip and fall matter that you would like to try to resolve before the end of the year, please consider Cummins Mediation Services.  Please contact me at 570-319-5899 or at dancummins@CumminsLaw.net.

Summary Judgment Denied in Lackawanna Slip and Fall Case

In his recent decision in the case of Santiago v. Wegmans Food Markets, Inc., No. 16-CV-1529 (C.P. Lacka. Co. Feb. 2, 2018 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a property owner’s Motion for Summary Judgment in a slip and fall action.

According to the Opinion, the Plaintiff was an employee of an independent contractor that was retained by the property owner to provide janitorial services.   The Plaintiff was allegedly injured in a slip and fall event on the premises.  

The Defendant-owner filed a Motion for Summary Judgment on the basis that it allegedly owned no duty of care to the employee of the independent contractor.  The landowner Defendant argued that a landowner who retains an independent contractor cannot be vicariously liable for the negligence of an independent contractor or its employees.  

However, Judge Nealon denied the Motion for Summary Judgment under the “retained control” exception to that theory of non-liability.  Under the exception, a property owner who entrusts work to an independent contractor remains subject to liability if its contract with the independent contractor grants the landowner control over the manner, method, and operative details of the independent contractor’s work.  

Judge Nealon found that there were issues of fact in this regard that required the court to deny the Motion for Summary Judgment filed.  

Anyone wishing to read this Opinion may click this LINK.