Bodecker, R. v. Bell, J. ( 2015 )

J. A01006/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
RYAN C. BODECKER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
: No. 590 WDA 2014
JOYCE E. BELL, BRIAN E. BELL AND :
DAWN E. BELL-STRYKER :
Appeal from the Order Entered March 31, 2014,
in the Court of Common Pleas of McKean County
Civil Division at No. 856 CD 2011
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 11, 2015
Ryan C. Bodecker appeals from the order entered March 31, 2014,
granting summary judgment for defendants/appellees Joyce E. Bell and
Dawn E. Bell-Stryker, and dismissing the complaint. We affirm.
This case arises out of [an] incident that
occurred on May 29, 2011 on the premises located at
309 Fulton Street, Smethport, Pennsylvania.
Defendants Dawn Bell Stryker and Brian Bell are title
owners to the land. Defendant Joyce Bell-Stryker
[sic] maintains a life estate in the land based on the
following language in the deed: “ALSO EXCEPTING
AND RESERVING unto the Grantor the full use,
control, income and possession of said pieces,
parcels or lots of land for and during her natural life.”
Defendant Joyce-Bell [sic] Stryker lived at the
premises from April 12, 2000 until March 1, 2010,
when she moved to New Hampshire. Defendant
Dawn Bell-Stryker has never lived in the residence
and she currently lives in Tyngsboroug,
Massachusetts. Defendant Brian Bell lives at an
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unknown location probably somewhere in Delaware
or New Hampshire and has also never lived at the
residence in question.
On February 13, 2010, Kristina Johnston
leased the residence and lived there with various
family members. She paid rent in checks or money
orders made to both Joyce Bell and Dawn
Bell-Stryker. In April 2011, some shingles were
blown off the roof of the Fulton Street residence
during a high windstorm. Ms. Johnston reported the
damage to Defendant Joyce Bell. Defendant Joyce
Bell then contacted her insurance agent, Burns and
Burns of Bradford, PA, to report the damage. (Joyce
Bell and Dawn Bell-Stryker are listed as the insured
on the property). An adjuster was sent to the house
and made an estimate. The insurance company then
sent $2,000 to Defendant Joyce Bell to be used to
repair the damage. Defendant Joyce Bell asked her
son Brian Bell to repair the damage and handed over
the $2,000 check to him.
Defendant Joyce Bell hired Brian Bell because
she had seen him replace the roof on her home with
the help of her husband. She had also been told by
Brian Bell that he had worked on roofs in the past.
Brian Bell enlisted the help of Fred Gamby to help
repair the roof.
On May 29, 2011, Ryan Bodecker was at the
Fulton Street residence visiting Amber Lawson, a
child of Kristina Johnston. Mr. Bodecker was asked
to help Brian Bell and Fred Gamby position an
aluminum ladder. While assisting, the ladder either
contacted or came close to the overhead power lines
running alongside the house. Mr. Bodecker,
Brian Bell, and Fred Gamby all sustained injuries due
[to] the resulting electrical shock.
Trial court opinion, 3/31/14 at 2-3.
Appellant filed a complaint on April 19, 2012. The procedural history
of this matter is set forth in the trial court’s March 31, 2014 Opinion and
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Order at pages 1-2. On February 6, 2014, defendants Joyce Bell and
Dawn Bell-Stryker (“Bell-Stryker”) filed a motion for summary judgment
which was granted on March 31, 2014.1 This timely appeal followed.
Appellant has complied with Pa.R.A.P. 1925(b), and the trial court has filed
an opinion.
Appellant has raised the following issues for this court’s review:
I. WHEN VIEWED IN THE CONTEXT OF THE
ENTIRE RECORD WHETHER THE LOWER
COURT ERRED AS A MATTER OF LAW AND/OR
COMMITTED AN ABUSE OF DISCRETION WHEN
IT GRANTED SUMMARY JUDGMENT IN FAVOR
OF BELL AND BELL-STRYKER[?]
Appellant’s brief at 2.
Summary judgment may be granted when the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Pa.R.C.P. 1035(b),
42 Pa.C.S.A. When considering a motion for
summary judgment, the trial court must examine the
record in the light most favorable to the non-moving
party, accept as true all well-pleaded facts in the
non-moving party’s pleadings, and give him the
benefit of all reasonable inferences drawn therefrom.
Dibble v. Security of America Life Ins., 404
Pa.Super. 205, 590 A.2d 352 (1991); Lower Lake
Dock Co. v. Messinger Bearing Corp., 395
Pa.Super. 456, 577 A.2d 631 (1990). Summary
judgment should be granted only in cases that are
free and clear of doubt. Marks v. Tasman, 527 Pa.
132, 589 A.2d 205 (1991). We will overturn a trial
court’s entry of summary judgment only if we find an
1
On March 21, 2014, default judgment was entered against Brian Bell, only.
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error of law or clear abuse of discretion. Lower
Lake Dock Co., supra.DeWeese v. Anchor Hocking Consumer and Indus. Products Group,
628 A.2d 421, 422-423 (Pa.Super. 1993).
It is well-settled that a party may not defeat a
motion for summary judgment by relying on the
allegations of his complaint. Rather, he must
present depositions, affidavits, or other acceptable
documents that show there is a factual issue for a
jury’s consideration. Brecher v. Cutler, 396
Pa.Super. 211, 578 A.2d 481 (1990).
Id. at 424.
Thus, our responsibility as an appellate court is
to determine whether the record either establishes
that the material facts are undisputed or contains
insufficient evidence of facts to make out a prima
facie cause of action, such that there is no issue to
be decided by the fact-finder. [Lackner v. Glosser,
892 A.2d 21, 29 (Pa.Super. 2006)]; see Pa.R.C.P.
1035.2.[Footnote 3] If there is evidence that would
allow a fact-finder to render a verdict in favor of the
non-moving party, then summary judgment should
be denied. Lackner, supra at 29[.]
[Footnote 3] Rule 1035.2 provides:
After the relevant pleadings are
closed, but within such time as not
to unreasonably delay trial, any
party may move for summary
judgment in whole or in part as a
matter of law (1) whenever there
is no genuine issue of any material
fact as to a necessary element of
the cause of action or defense
which could be established by
additional discovery or expert
report, or
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(2) if, after the completion of
discovery relevant to the motion,
including the production of expert
reports, an adverse party who will
bear the burden of proof at trial
has failed to produce evidence of
facts essential to the cause of
action or defense which in a jury
trial would require the issues to be
submitted to a jury.
Pa.R.C.P. 1035.2.
Jones v. Levin, 940 A.2d 451, 453-454 (Pa.Super. 2007).
To prevail in a negligence suit, the complaining
party must prove four elements:
1. A duty or obligation recognized by law.
2. A breach of the duty.
3. Causal connection between the actor’s
breach of the duty and the resulting
injury.
4. Actual loss or damage suffered by
complainant.
Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d
1281, 1286 (Pa.Super.2005), appeal denied, 587
Pa. 731, 901 A.2d 499 (2006) (citation omitted and
emphasis removed).
Id. at 454.
Pennsylvania law follows the general rule that
a lessor of land is not liable to the lessee or to
others, including business invitees,[2] for the
physical harm caused by either natural or artificial
conditions on the land which existed when the land
was transferred or which arise after the transfer of
2
Here, appellant was a social guest, or licensee.
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possession. Dinio v. Goshorn, 437 Pa. 224, 228-
229, 270 A.2d 203, 206 (1969); Pierce v.
Philadelphia Housing Authority, 337 Pa.Super.
254, 257, 486 A.2d 1004, 1005 (1985) (citations
omitted); Craig v. Ryan, 201 Pa.Super. 307, 191
A.2d 711 (1963); Restatement (Second) of Torts
§§ 355-356 (1965). This principle is based upon the
theory that when the lessor leases the land, the law
regards the lease transaction as the equivalent to
the sale of the land for the term of the lease.
Restatement (Second) of Torts § 356, Comment a.
There are several exceptions to this general
rule: where the lessor contracts to repair; where the
lessor fails to disclose dangerous conditions to the
lessee; where the land is leased for the purpose of
inviting the public; where the lessor retains a portion
of the land but allows the lessee to use it; where the
lessor retains a portion of the land that is necessary
to maintain the leased part in a safe condition; and,
where the lessor negligently makes repairs on the
land while it is in the possession of the lessee.
Smith v. M.P.W. Realty Company, Inc., 423 Pa.
536, 225 A.2d 227 (1967); Miller v. Atlantic
Refining Co., 12 D & C.2d 713, (1957) aff’d, 393
Pa. 466, 143 A.2d 380 (1958); Pierce, supra;Yarkosky v. The Caldwell Store, Inc., 189
Pa.Super. 475, 151 A.2d 839 (1959); Coradi v.
Sterling Oil Co., 378 Pa. 68, 105 A.2d 98 (1954);
Goodman v. Corn Exchange National Bank and
Trust Co., 331 Pa. 587, 200 A. 642 (1938);
Restatement (Second) of Torts §§ 357-362 (1965).
Initially, we note that Restatement sections 355-362
specifically deal with the liability of lessors of land to
persons on the land. A review of these sections
evidences that liability is premised primarily on
possession and control, and not merely ownership.
See Smith v. King’s Grant Condominium, 418
Pa.Super. 260, 614 A.2d 261 (1992) (while
ownership may be a factor under Restatement
(Second) of Torts, § 364(c) liability is premised on
possession and control); Juarbe v. City of
Philadelphia, 288 Pa.Super. 330, 431 A.2d 1073(1981) (lessor may be held liable for injuries
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sustained on his property if he maintains possession
and control over the property).
Deeter v. Dull Corp., Inc., 617 A.2d 336, 338-339 (Pa.Super. 1992),
appeal denied, 629 A.2d 1380 (Pa. 1993) (footnote omitted). See also
Jones, 940 A.2d at 454 (“As a general rule, a landlord out of possession is
not liable for injuries incurred by third parties on the leased premises
because the landlord has no duty to such persons.”) (citations omitted).
Here, neither Joyce Bell nor Dawn Bell-Stryker was in possession or
control of the land. Therefore, the general rule applies. With regard to
Bell-Stryker, she owned the property but otherwise had no real connection
to it. As the trial court explained, “She had no control or possession of the
property in question. She did not call the insurance company after the
lessee reported the damage. She did not receive the insurance check after
the adjuster made the estimate. She did not arrange for Brian Bell to make
the repairs. Her only possible connection to the property was that of rent
collector.” (Opinion and Order, 3/31/14 at 7.)
With regard to Joyce Bell, she reserved unto herself use of the
property for the remainder of her lifetime. However, appellant admits that
Johnson was the tenant of the property. Since Johnson was renting the
property and was in possession and control of the property, Joyce Bell and
Bell-Stryker were absentee landlords and were not in possession of the
property at the time of the accident. They had no duty to appellant. The
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trial court did not err in finding that Joyce Bell and Bell-Stryker were not
liable.
As stated above, there is a “contracts to repair” exception; however,
here, there is no evidence that the defendants took part in the planning of
the repair project or were aware of the details of how the project was to be
completed. Both Joyce Bell and Bell-Stryker were hundreds of miles away in
New England at the time. There is no evidence that they were consulted by
Brian Bell and Fred Gamby while the roofing project was being performed in
Smethport. The only evidence connecting the defendants to the May 29,
2011 accident is that they had title to the premises and they were aware
that Brian Bell and Fred Gamby were going to repair the roof. This is
insufficient for a cause of action in negligence.
As the trial court states, the crux of appellant’s complaint is really that
Joyce Bell and Bell-Stryker are liable for negligently hiring Brian Bell to fix
the roof. The trial court determined that no reasonable person could
conclude that Joyce Bell was negligent in her selection of Brian Bell as an
independent contractor, where he had helped her husband replace the roof
on their home and appellant failed to produce any evidence that Joyce Bell
had a peculiar duty to protect appellant from harm. (Opinion and Order,
3/31/14 at 8.)
As a general rule, “the employer of an independent
contractor is not liable for the physical harm caused
[to] another by an act or omission of the contractor
or his servant.” Mentzer v. Ognibene, 408
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Pa.Super. 578, 589, 597 A.2d 604, 610 (1991),
alloc. denied, 530 Pa. 660, 609 A.2d 168 (1992)
(citing Hader v. Coplay Cement Mfg. Co., 410 Pa.
139, 151, 189 A.2d 271, 277 (1963) (citations
omitted)). “An independent contractor is in
possession of the necessary area occupied by the
work contemplated under the contract, and his
responsibility replaces that of the owner who is,
during the performance of the work by the
contractor, out of possession and without control
over the work or the premises.” Mentzer, 408
Pa.Super. at 589, 597 A.2d at 610 (citing Hader,
410 Pa. at 151, 189 A.2d at 277).
Motter v. Meadows Ltd. Partnership, 680 A.2d 887, 890 (Pa.Super.
1996).
An exception to this general rule is recognized,
where the independent contractor is hired to do work
which the employer should recognize as likely to
create a special danger or peculiar risk of physical
harm to others unless special precautions are taken.
Restatement (Second) of Torts, §§ 416 and 427
(1965) (adopted as law of Pennsylvania in
Philadelphia Elec. Co. v. James Julian, Inc., 425
Pa. 217, 228 A.2d 669 (1967)).
Id.To determine whether a special danger or peculiar
risk exists, the court in Ortiz v. Ra–El Dev. Corp.,
365 Pa.Super. 48, 528 A.2d 1355 (1987), alloc.
denied, 517 Pa. 608, 536 A.2d 1332 (1987),
established a two prong test: 1) Was the risk
foreseeable to the employer of the independent
contractor at the time the contract was executed?;
and 2) Was the risk different from the usual and
ordinary risk associated with the general type of
work done, i.e., does the specific project or task
chosen by the employer involve circumstances that
were substantially out-of-the-ordinary? Id. at 53,
528 A.2d at 1359. This two step process requires
that:
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“the risk be recognizable in advance and
contemplated by the employer [of the
independent contractor] at the time the
contract was formed . . . [and that] it
must not be a risk created solely by the
contractor’s ‘collateral negligence’ . . .
[i.e.,] negligence consisting wholly of the
improper manner in which the contractor
performs the operative details of the
work.”
Edwards v. Franklin & Marshall College, 444
Pa.Super. 1, 7, 663 A.2d 187, 190 (1995) (quoting
Mentzer, 408 Pa.Super. at 592, 597 A.2d at 610).
Id.3
Here, there was nothing particularly dangerous about repairing the
roof. All that needed to be done was to replace some shingles that had
blown off during a storm. The insurance company estimated the total cost
of repair as $2,000. This was not a complicated project. As the trial court
states, it was a reasonable assumption that an individual who can replace a
roof can also repair a roof. (Opinion and Order, 3/31/14 at 8.) Certainly, it
3
§ 411. Negligence in Selection of Contractor
An employer is subject to liability for physical harm
to third persons caused by his failure to exercise
reasonable care to employ a competent and careful
contractor
(a) to do work which will involve a risk of
physical harm unless it is skillfully and
carefully done, or (b) to perform any
duty which the employer owes to third
persons.
Restatement (Second) of Torts § 411.
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was not reasonably foreseeable that during repair of the roof, an aluminum
ladder would come into contact with nearby power lines, electrocuting
appellant. If anything, it was the contractor, Brian Bell, who created the risk
through his own negligence. Brian Bell asked appellant for assistance in
moving the ladder. We agree with the trial court that neither Joyce Bell nor
Bell-Stryker had a “peculiar duty” to protect appellant under these
circumstances. They were simply too far removed from the situation.
Finally, appellant claims that in ruling on the motion for summary
judgment, the trial court ran afoul of the Nanty-Glo rule. Appellant
complains that the trial court relied on the deposition testimony of Joyce Bell
and Bell-Stryker in concluding that Brian Bell was an independent contractor
and that they were not negligent in hiring him to perform the work.
In determining the existence or non-existence
of a genuine issue of a material fact, courts are
bound to adhere to the rule of Nanty-Glo v.
American Surety Co., 309 Pa. 236, 163 A. 523(1932) which holds that a court may not summarily
enter a judgment where the evidence depends upon
oral testimony.
“‘However clear and indisputable may be
the proof when it depends on oral
testimony, it is nevertheless the province
of the jury to decide, under instructions
from the court, as to the law applicable
to the facts, and subject to the salutary
power of the court to award a new trial if
they should deem the verdict contrary to
the weight of the evidence’: Reel v.
Elder, 62 Pa. 308.”
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309 Pa. at 238, 163 A. at 524. The Nanty-Glo rule
means that:
“Testimonial affidavits of the moving
party or his witnesses, not documentary,
even if uncontradicted, will not afford
sufficient basis for the entry of summary
judgment, since the credibility of the
testimony is still a matter for the jury.”
Goodrich-Amram, 2d, supra, § 1035(b): 4 at pp.
434-35.
Penn Center House, Inc. v. Hoffman, 553 A.2d 900, 903 (Pa. 1989).
The trial court states that it did consider the deposition testimony of
Joyce Bell and Bell-Stryker; however, it did not rely exclusively on their
testimony. (Trial court opinion, 5/9/14 at 2.) As the trial court points out, it
is undisputed that Joyce Bell and Bell-Stryker were out-of-possession
landlords and that Johnson was renting the property. (Id.) Since Johnson
was the tenant and controlled the property, the general rule applies and
Joyce Bell and Bell-Stryker cannot be liable. (Id.)
Regarding appellant’s claim of negligent hiring, appellant would first
have to show the existence of an exception to the general rule that an
employer of an independent contractor is not liable. As discussed above, it
is clear that the defendants owed no special duty to appellant. Repairing the
roof did not involve an unreasonable risk of harm. (Id. at 3.) There was
nothing about replacing shingles on the roof that presented a special danger
or was out of the ordinary. As appellees observe, appellant did not gather
any evidence to prove his allegations and cannot simply rely on the
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allegations in his pleadings to defeat a motion for summary judgment.
(Appellees’ brief at 17.) Appellant did not depose Brian Bell (who,
admittedly, could not be located to be served) or Fred Gamby. Appellant did
not depose any occupant of the premises. Appellant did not present any
evidence of the professional experience of Brian Bell or Fred Gamby other
than through the testimony of Joyce Bell and Bell-Stryker. (Id.) Appellant
developed no evidence during discovery to support his theories of liability.
Simply stated, there was nothing here that could go to the jury. The trial
court did not err in granting summary judgment for the defendants.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2015
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