Main, R. v. The Columbia Gas Company ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT P. MAIN, III : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THE COLUMBIA GAS COMPANY OF : No. 1470 WDA 2018
PENNSYLVANIA A SUBSIDIARY OF, :
NISOURCE INC. :
Appeal from the Order Entered September 14, 2018
In the Court of Common Pleas of Lawrence County Civil Division at
No(s): 11070 of 2015
BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 9, 2019
Robert P. Main, III appeals from the order granting summary judgment
in favor of The Columbia Gas Company of Pennsylvania (“Columbia Gas”) in
this negligence action. Main argues that the court erred in concluding that
Columbia Gas was not negligent in bringing methanol to the site where Main
was working under Columbia Gas’s subcontractor; the court erred in finding
that Columbia Gas was not vicariously liable for the subcontractor’s
negligence, because it did not retain control over the subcontractor; and the
court erred in finding Columbia Gas was not vicariously liable under the
peculiar risk doctrine. We affirm.
Columbia Gas owns the natural gas lines servicing a residential
community in Wampum Borough, Lawrence County. Trial Court Opinion, filed
11/16/18, at 6. The gas lines include a four-inch-wide “main” pipeline, and
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smaller “service lines” that branch off to the individual residences. Id. at 8.
The lines were installed by a subcontractor, The Fishel Company (“Fishel”). By
November 25 2013, the lines had become clogged with water and ice, and
Columbia contracted with Fishel to clear the main and service lines. Id. at 6,
8, 9-10. After the main line and service lines were disconnected, the service
lines were cleared using methanol, which helps evaporate water. Id. at 10. A
Columbia Gas employee brought methanol to the site, for use by Fishel
employees, in a bottle with the word “methanol” hand-written on it. Id. at 10;
Amended Complaint at ¶ 8. Columbia Gas informed the Fishel foreman that
methanol was at the site. Tr. Ct. Op. at 10.
Meanwhile, other Fishel employees were using a method referred to as
“pigging” to clear the main line. This involved shooting a foam bullet-like plug
(known as a “pig”) down a portion of the clogged pipe using compressed air.
Id. at 2, 8. The main line was 500 to 600 feet long, and it would take a pig
around 30 seconds to travel through it. Id. at 9. Keith Rerko, a Fishel
employee, was at the shooting end of the pigging operation. Id. Main, also an
employee of Fishel, was at the receiving end, and would retrieve the pigs from
the ground after they were ejected from the pipe. Id. at 8. Rerko and Main
remained in communication regarding when the pigs were shot and ejected.
Id. at 8-9.
Several Columbia Gas employees were present and monitoring Fishel’s
work. Id. at 9-11, 20-21. They made occasional suggestions, such as telling
Rerko which type of weld to use on the pipe before firing pigs, and instructed
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Rerko to use two pigs at a time. Id. at 11. They also told the Fishel employees
whether the line was sufficiently clear or more pigging was needed. Id. at 9.
At approximately 5:00 p.m., the bottle of methanol was left near the
hole where Rerko was shooting the pigs; Rerko cannot recall who left it there.
Id. at 11. On previous jobs for other employers, Rerko had used methanol to
clear water vapor from main gas lines. Rerko Dep. at 81-82. Rerko poured a
half-ounce of the methanol into the main line, and then shot air through the
line for 15-20 minutes. Tr. Ct. Op. at 11-12. Rerko did not tell anyone he had
used methanol in the main line during the pigging operation. Id. at 12.
Rerko then resumed shooting pigs, two at a time. Id. He did so twice
without incident. Id. A Columbia Gas employee then advised Rerko to put a
rag in between the two pigs to absorb extra water, and Rerko did so.1 Id.
After those two pigs were ejected, while Main was retrieving them from the
hole, an explosion occurred which severely injured Main’s foot and ankle.
Amended Complaint at ¶ 26.
Main initiated the instant suit against Columbia Gas by filing a Complaint
and a subsequent Amended Complaint. In his Amended Complaint, Main
alleged that Columbia Gas negligently brought methanol to the site without
training the Fishel employees on its use, warning Fishel of the inherent danger
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1 According to Rerko, the Columbia Gas employee “suggested or instructed”
that Rerko use two pigs with a balled-up rag between them. Rerko Dep. at
68-69.
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of using methanol, or taking other safety precautions. Main alleged that the
improper use of methanol caused the explosion which injured Main.
Columbia Gas filed an Answer asserting that none of its own actions or
omissions proximately caused Main’s injuries. Columbia Gas also argued it did
not supervise or direct Fishel’s work performed on the gas lines. Columbia Gas
included as New Matter that the contract between Columbia Gas and Fishel
provided that Fishel was responsible for managing its employees and utilizing
safety protocols.2
After discovery was conducted, Columbia Gas filed a motion for
summary judgment. Main filed a response, arguing, inter alia, that the
presence of methanol had created a peculiar risk. After argument, the trial
court granted summary judgment in favor of Columbia Gas and dismissed
Main’s Amended Complaint with prejudice. Main filed a petition for
reconsideration. The court heard argument and denied the petition.
Main appealed, and raises the following questions:
1. Did the trial court err in ruling as a matter of law that no juror
could find that Columbia Gas was separately and independently
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2 The contract stated that Fishel “shall exercise the utmost care when the use
or storage for explosives or other Hazardous Materials or equipment is
necessary for the performance of the Work.” General Services Agreement at
11, ¶ 9. The contract also stated that Fishel “shall initiate, maintain, and
supervise all safety and health, loss control measures,” including any safety
programs required and regulations by the Occupational Safety and Health Act
(“OSHA”).” Id. Fishel also assumed responsibility “for the prevention of
accidents and for conducting site inspections and enforcing compliance with
all safety and health programs.” Id.
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negligent in bringing the methanol to the work site without
exercising proper precautions?
2. Did the trial court err in finding that Columbia Gas could not
possibly be liable to Main because it hired Team Fishel as an
independent contractor to perform the work?
3. Did the trial court err in finding Columbia Gas satisfied its duty
to Main by merely informing a Team Fishel supervisor that
methanol was on site?
4. Did the trial court err in finding that Columbia Gas did not retain
and exercise control over the means and methods of Team Fishel’s
work so as to impose liability under Restatement (Second) of Torts
§ 414?
5. Did the trial court err in failing to find that the work performed
by Team Fishel was performed under unusually dangerous
circumstances so as to involve a special danger or peculiar risk
such as to impose liability upon Columbia Gas under Restatement
(Second) of Torts §§ 413, 416, and/or 427?
Main’s Br. at 4 (suggested answers omitted).3
Summary judgment should only be granted “where there is no genuine
issue as to any material fact and it is clear that the moving party is entitled to
a judgment as a matter of law.” Good v. Frankie & Eddie’s Hanover Inn,
LLP, 171 A.3d 792, 795 (Pa.Super. 2017) (quoting Hall v. CNX Gas Co.,
LLC, 137 A.3d 597, 601 (Pa.Super. 2016)). All facts and reasonable inferences
therefrom are to be viewed in the light most favorable to the non-moving
party. Id. We review the grant of summary judgment for an error of law or
abuse of discretion. Id.
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3We note that while Main has presented five questions, he has presented his
argument in only four sections, in contravention of Pa.R.A.P. 2119(a).
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I. Whether Columbia Gas Was Independently Negligent
In its first three issues, Main argues that Columbia Gas was
independently negligent for bringing methanol to the job site without
adequately warning Main of its inherent dangers. Main argues that Columbia
Gas owed a duty to him, as a business invitee, to protect him against, and
warn him of, known and unobvious dangers on the land. Main contends that
Columbia Gas breached this duty of care by bringing methanol to the work
site without taking certain safety measures, such as warning all Fishel
employees as to the dangers of methanol, training Fishel employees as to its
proper use, monitoring and controlling the location of the methanol on the job
site, and adequately labeling the methanol bottle. Main submits that these
actions and inactions by Columbia Gas were a substantial factor in causing his
injuries.
To hold a defendant liable for negligence, the plaintiff must prove the
following four elements: (1) a legally recognized duty that the defendant
conform to a standard of care; (2) the defendant breached that duty; (3)
causation between the conduct and the resulting injury; and (4) actual
damage to the plaintiff. Nationwide Mut. Fire Ins. Co. v. Modern Gas, 143
A.3d 412, 415 (Pa.Super. 2016).
We address only the third element, causation, as we find it dispositive.4
To prove causation, a plaintiff must demonstrate that the defendant’s breach
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4 Given our disposition, we need not address the other findings of the trial
court on the issue of Columbia Gas’s independent negligence.
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of duty was both the proximate cause and actual cause of the plaintiff’s injury.
Eckroth v. Pa. Elec., Inc., 12 A.3d 422, 427 (Pa.Super. 2010). Although
multiple causes may contribute to, and thus qualify as a proximate cause of
an injury, see Straw v. Fair, 187 A.3d 966, 995 (Pa.Super. 2018), appeal
denied, 202 A.3d 49 (Pa. 2019), 202 A.3d 50 (Pa. 2019), and 202 A.3d 51
(Pa. 2019), “[p]roximate cause does not exist where the causal chain of
events resulting in plaintiff’s injury is so remote as to appear highly
extraordinary that the conduct could have brought about the harm.” Lux v.
Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286-87 (Pa.Super. 2005).
Rather, an act only qualifies as a proximate cause when it was “a substantial
factor in bringing about the plaintiff’s harm.” Eckroth, 12 A.3d at 428.
Section 433 of the Restatement (Second) of Torts provides the following
considerations for a determination of whether an act was a substantial factor
in bringing about harm:
(a) the number of other factors which contribute in producing the
harm and the extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of
forces which are in continuous and active operation up to the time
of the harm, or has created a situation harmless unless acted upon
by other forces for which the actor is not responsible;
(c) lapse of time.
Restatement (Second) of Torts § 433 (1965).5
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5The Pennsylvania Supreme Court has cited this section as consistent with
Pennsylvania law. See Straw, 187 A.3d at 995.
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“Where relevant facts are not in dispute and the remoteness of the
causal connection between the negligence of the original actor and the injury
is so clear, the issue becomes one of law.” Nationwide Mut. Fire Ins. Co.,
143 A.3d at 416; see also Brown v. Phila. Coll. of Osteopathic Med., 760
A.2d 863, 868 (Pa.Super. 2000) (stating proximate cause may be determined
as a matter of law, and finding defendant’s negligence was not a substantial
factor under § 433).
Here, the trial court found that summary judgment was appropriate on
this issue because the act of Columbia Gas in bringing the methanol to the
site was not, as a matter of law, a proximate cause of Main’s injuries.
Regarding Section 433 clause (a), the number and effect of other factors that
contributed to the harm, the court found the action taken by Rerko was a
“determinative intervening factor,” as “Rerko placed an amount of methanol
in the main line, initiated a procedure which he did not consult with anyone
on, and never informed anyone he placed methanol in the main line.” Tr. Ct.
Op. at 26-27. The court stated, “Without Rerko’s independent actions, the
methanol at the site would not have been introduced to the main line, outside
of normal procedures, and based on [Main’s] theory of the case, [Main’s]
injury would not have occurred.” Id. at 27.
Regarding Section 433 clause (b), the court found that Columbia Gas
did not create a force or series of forces that continuously led to Main’s
injuries. Id. at 26. Instead, in the court’s view, Columbia Gas created a
situation that was harmless until it was independently acted upon by Rerko.
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Id. The court noted that Columbia Gas brought the methanol to the worksite
for the legitimate purpose of its use in the service lines, and there was no
evidence that Columbia Gas brought the bottle of methanol to the pigging
operation. Id. at 25-26. The court also found that under Section 433 clause
(c), “the limited amount of time which passed between the conduct at issue
and the injury” was insufficient to determine proximate causation. Id. at 25.
We agree that Columbia Gas’s actions were not a substantial factor in
causing Main’s injuries, and thus did not constitute proximate cause. Eckroth,
12 A.3d at 428. In bringing methanol to the worksite for use on the service
lines, Columbia Gas created a harmless situation; it was highly extraordinary
that Rerko would have independently poured the methanol, from the bottle
labeled with the word “methanol,” directly into the main pipeline, in between
shooting pigs through that same pipeline. Lux, 887 A.2d at 1286-87. As there
can be no liability for negligence without the element of causation,
Nationwide Mut. Fire Ins. Co., 143 A.3d at 415, we conclude the trial court
did not err in granting summary judgment in favor of Columbia Gas on this
issue.
II. Whether Columbia Gas Retained Control Over Fishel
Main argues that Columbia Gas is vicariously liable for the actions of the
Fishel employees, including Rerko, as Columbia Gas retained control over
Fishel’s work.
Generally, the employer of an independent contractor is not liable for
harm caused by the negligence of the contractor or its employees. Beil v.
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Telesis Const., Inc., 11 A.3d 456, 466 (Pa. 2011). Some exceptions to this
rule exist, including the “retained control” exception set forth in Section 414
of the Restatement (Second) of Torts. Id. This section provides as follows:
One who entrusts work to an independent contractor, but who
retains the control of any part of the work, is subject to 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.
Rest. (Second) of Torts § 414.
Comment a to § 414 explains that an employer of a contractor is liable
under agency theory when it “retains control over the operative detail of
doing any part of the work.” Id. at Comment a (emphasis added). Comment
c provides further guidance for determining whether the employer retained a
sufficient degree of control for the exception to apply. Beil, 11 A.3d at 466. It
states:
In order for the rule stated in this Section to apply, the employer
must have retained at least some degree of control over the
manner in which the work is done. It is not enough that he has
merely a general right to order the work stopped or resumed, to
inspect its progress or to receive reports, to make suggestions or
recommendations which need not necessarily be followed, or to
prescribe alterations and deviations. Such a general right is
usually reserved to employers, but it does not mean that the
contractor is controlled as to his methods of work, or as to
operative detail. There must be such a retention of a right of
supervision that the contractor is not entirely free to do the work
in his own way.
Rest. (Second) of Torts § 414, Comment c.
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Synthesizing these comments, our Supreme Court has stated that the
retained control exception can be demonstrated in two ways: (1) evidence of
a contractual provision giving the employer “control over the manner, method,
and operative details of the work,” or (2) evidence that the employer
“exercised actual control” “over the manner, methods, means, or operative
detail in which the work [was] performed.” Beil, 11 A.3d at 467, 471. The
Court also clarified that the exception does not apply to the retention of “a
certain degree of authority over safety issues, such as supervising and
enforcing safety requirements.” Id. at 469. The exception is to be construed
narrowly, and the determination may be made as matter of law if the evidence
fails to establish that the employer retained a sufficient degree of control. Id.
at 467.
Main does not argue that the contract evinces that Columbia Gas
retained control over the work, but that Columbia Gas exercised actual
control. Main argues that Columbia Gas “did not permit Team Fishel to perform
the pigging operations as it wanted.” Main’s Br. at 26. Main relies on only two
facts to support this proposition: that Columbia Gas employees instructed
Rerko to (1) use a certain type of weld, and (2) place a rag between two pigs.
Id.
The trial court found that not only did the contract confer Fishel with the
responsibility for safety and management of hazardous materials, but “[t]he
cumulative evidence, in the light most favorable to [Main], reveals only limited
control by Columbia Gas over the manner of work, even if there was extensive
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control of what work was performed.” Tr. Ct. Op. at 18-19. The court noted
that Columbia Gas provided initial instructions to the service line crews,
instructed Rerko to use two pigs rather than one, instructed Rerko to use a
rag between the two pigs, and instructed Fishel to use a backhoe to catch the
pigs if necessary. Id. at 21. The trial court also noted Columbia Gas employees
verified whether the main line was clear or another shot was necessary, but
ultimately found that Columbia Gas did not instruct Fishel on the operative
details on how to perform the work. Id. at 20.
We agree that, as a matter of law, Main has failed to argue that he
presented sufficient evidence to invoke the retained control exception. The
evidence he points to does not indicate that Columbia Gas exercised “control
over the manner, method, and operative details of the work.” Rather, it shows
at most that Columbia Gas intermittently exercised its right as employer of a
contractor “to inspect its progress or to receive reports, to make suggestions
or recommendations which need not necessarily be followed, or to prescribe
alterations and deviations.” Rest. (2nd) of Torts § 414, Comment c; Beil, 11
A.3d at 466; see Hader v. Coplay Cement Mfg. Co., 189 A.2d 271, 278-79
(Pa. 1963) (finding that site visitation and technical advice provided by
employer did not demonstrate employer retained control). Crucially, Columbia
Gas provided no instructions regarding the use of methanol to clear the main
line in the midst of the pigging operation, the aspect of Fishel’s work that
allegedly caused Main’s injuries. See, e.g., Nertavich v. PPL Elec. Utils.,
100 A.3d 221, 236-37 & n.22 (Pa.Super. 2014) (finding employer not liable
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under the retained control exception for retaining control over tagging poles
as electrically inactive, where the issuance of the tag did not cause the plaintiff
to fall off the poles he was painting), aff’d, 124 A.3d 734 (Pa. 2015). We thus
conclude that the trial court did not err in granting summary judgment on the
issue of retained control.
III. Whether a Peculiar and Unreasonable Risk Existed
Main’s final argument is that Columbia Gas was vicariously liable for
Fishel’s negligence under Restatement (Second) of Torts §§ 413, 416, and
427, as the work involved a peculiar risk of harm. Main asserts that Columbia
Gas created a peculiar and unreasonable risk of physical harm by bringing
methanol to the work site without taking special precautions, such as
monitoring its use and location, or conducting the fire and explosion hazard
assessment required by OSHA regulations.
Main failed to include this issue in his Rule 1925(b) Statement of Errors.
Nowhere among the 18 issues and sub-issues included in his Statement does
Main mention that the court erred in concluding that Columbia Gas was liable
because the work presented a peculiar risk or special danger,6 or invoke these
sections of the Restatement (Second) of Torts. In its 1925(a) opinion, the trial
court observed that on appeal Main “drop[ped] the specific arguments around
. . . peculiar risk liability,” and the court accordingly does not address this
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6 These phrases “peculiar risk” and “special danger” as used in the
Restatement are interchangeable. Mentzer v. Ognibene, 597 A.2d 604, 610
(Pa. 1991).
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issue. Tr. Ct. Op. at 7. We therefore conclude this issue is waived. See
Pa.R.A.P. 1925(b)(4)(vii).
Were it not waived, we would find no relief to be due. Main has offered
no evidence to establish that the act of pigging involves a peculiar risk or
special danger. Rather, the evidence indicates that the addition of methanol
to the pigging operation was not foreseeable, and the risk arose solely due to
Rerko’s “collateral negligence.” See Emery v. Leavesly McCollum, 725 A.2d
807, 814 (Pa.Super. 1999) (stating a peculiar risk must be foreseeable and
not “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”) (quoting Mentzer, 597 A.2d at
611).
Having found no issue meriting relief, we affirm the order of the trial
court granting summary judgment in favor of Columbia Gas.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2019
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