Brown v. Oil City Appeal of: Best

[J-66-2022] [MO: Todd, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
DAVID L. BROWN, INDIVIDUALLY AND : No. 6 WAP 2022
AS EXECUTOR OF THE ESTATE OF :
KATHRYN A. BROWN, DECEASED : Appeal from the Order of the
: Commonwealth Court entered
: September 1, 2021 at No. 337 CD
v. : 2020, reversing the Order of the
: Court of Common Pleas of Venango
: County entered February 28, 2020 at
CITY OF OIL CITY : No. 589-2016 and remanding.
:
: ARGUED: October 26, 2022
v. :
:
:
FRED L. BURNS, INC. :
:
:
v. :
:
:
SCOTT AMSDELL, INDIVIDUALLY, AND :
MACON, INC., AND HAROLD BEST, :
INDIVIDUALLY, AND STRUXURES, LLC :
:
:
APPEAL OF: HAROLD BEST, :
INDIVIDUALLY, STRUXURES, LLC, AND :
FRED L. BURNS, INC. :
DISSENTING OPINION
JUSTICE MUNDY DECIDED: MAY 16, 2023
I agree with much of the Majority’s exposition of the analytical legal background
undergirding the interpretive question at hand but disagree with its conclusions respecting
that interpretation. That is, as more fully explained herein, I interpret the relevant sections
of the Restatement to indicate the latency of a dangerous condition is an integral element
of foreseeability, which in turn is a prerequisite to a contractor’s liability to third parties.
Of note, as acknowledged by all parties, the relevant sections of the Restatement
(Second) of Torts employ language this Court adopted through the Restatement (First) of
Torts in Prost v. Caldwell Stores, 187 A.2d 273 (Pa. 1963). The source of the principles
espoused in these sections stem from the seminal case of MacPherson v. Buick Motor
Company, 217 N.Y. 382 (1916). The central principal advanced in MacPherson was that
under certain circumstances, the absence of a contractual relationship, duty, or privity will
not preclude liability of a manufacturer of defective chattels for injuries incurred by an
ultimate user of the chattel. Two of those circumstances, which are not at issue in this
appeal, include that the manufacturer knows or has reason to know of the dangerous
condition, and that the dangerous condition resulted from its lack of care or negligence.
MacPherson, supra at 391.1 In this case, we consider whether a third condition, that it is
foreseeable by the contractor that the injured party as a potential user/possessor could
be harmed by the dangerous defect, is also required to predicate liability. We further
consider the role the latency or patency of the dangerous condition has on any
foreseeability requirement. The Majority concludes that latency is not an essential
1 The Majority recognizes that the parties do dispute when the work was completed and
if it was accepted by Oil City, but that those factual disputes do not impact the issue
accepted for review. Maj. Op. at 9 n.6. It is unclear from the agreed facts whether
Appellants knew of the defect and dangerous condition, or should have known, due to its
negligent design or execution of its repairs and reconstruction of the stairs at the time it
relinquished possession and control to Oil City. The defect apparently manifested itself
within a short time, and Appellants were so advised. It is upon this basis that the question
of knowledge and our current issue respecting the role of latency/patency in foreseeability
are predicated. However, it begs the question of when the issues of knowledge of defect
and dangerous condition, foreseeability, and latency/patency are to be considered. See
e.g., Sanchez v. Swinerton & Walberg Co., 47 Cal.App.4th 1461, 1471 (opining an initially
latent defect becomes patent upon discovery). For the purposes of this case, we accept
the trial court’s finding that the dangerous condition was patent, and we focus on whether
latency is a necessary component of foreseeability and thus a legal requirement to extend
a contractor’s liability to third parties under the Restatement.
[J-66-2022] [MO: Todd, C.J.] - 2
element of foreseeability. Maj. Op. at 2. I disagree. The law of this Commonwealth does
not impose liability upon possessors of land for injuries to invitees from open and obvious
dangerous conditions. See discussion of Carrender v. Fritterer, 469 A.2d 120 (1983)
infra. Neither does it impose upon contractors any greater obligation to foresee that an
injured third party will ignore such open and obvious dangers.
Section 385 of the Restatement (Second) of Torts addresses the liability of a party
erecting or repairing a structure on behalf of a possessor of land after the work has been
completed and accepted. The section states that the rules are the same as those for
manufacturers and independent contractors. Those rules are stated in Sections 394-398
and 403-404 respectively.2
Thus, as the Majority explains, it is the language and import of Sections 394 and
398 that we must consider in answering the question presented. I set forth those sections
herein.
§ 394 Chattel Known to be Dangerous
The manufacturer of a chattel which he knows or has reason
to know to be, or to be likely to be, dangerous for use is subject
to the liability of a supplier of chattels with such knowledge.
Restatement (Second) of Torts § 388 (1965).
§ 388 Chattel Known to be Dangerous for Intended Use
One who supplies directly or through a third person a chattel
for another to use is subject to liability to those whom the
supplier should expect to use the chattel with the consent of
the other or to be endangered by its probable use, for physical
harm caused by the use of the chattel in the manner for which
and by a person for whose use it is supplied, if the supplier
2 Section 404, in turn, refers to the rules pertaining to manufacturers of chattels, i.e.
sections 394-398.
[J-66-2022] [MO: Todd, C.J.] - 3
(a) knows or has reason to know that the chattel is or is likely
to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the
chattel is supplied will realize its dangerous condition,
and
(c) fails to exercise reasonable care to inform them of its
dangerous condition or of the facts which make it likely to
be dangerous.
Id. § 388 (emphasis added).
§ 389 Chattel Unlikely to be made Safe for Use
One who supplies directly or through a third person a chattel
for another’s use, knowing or having reason to know that the
chattel is unlikely to be made reasonably safe before being
put to a use which the supplier should expect it to be put, is
subject to liability for physical harm caused by such use to
those whom the supplier should expect to use the chattel or
to be endangered by its probable use, and who are ignorant
of the dangerous character of the chattel or whose
knowledge thereof does not make them contributorily
negligent, although the supplier informed the other for whose
use the chattel is supplied of its dangerous character.
Id. § 389 (emphasis added).
The highlighted language of Sections 388(b) and 389, in my view, makes clear that
latency of the dangerous condition is a third predicate condition to imposing liability
outside of the privity relationships bypassed by the reasoning in MacPherson. The trial
court’s findings in this matter established that the danger at issue was known and obvious
to a degree that reasonable minds could not differ, making the issue appropriate for
summary judgment. Trial Ct. Op., 10/25/19, at 2-3; Trial Ct. Op., 5/13/20, at 9-10. For
the purposes of this appeal, we must accept that finding.3
3 As the trial court noted, in certain cases it may be for a jury to decide whether a
dangerous condition is patent or latent. Trial Ct. Op., 5/13/20, at 9.
[J-66-2022] [MO: Todd, C.J.] - 4
The phrasing of the question accepted for review focuses on the knowledge of the
possessor of land, Oil City. 4 However, it is not merely the subjective knowledge of Oil
City that is implicated here, nor does the Majority constrain its analysis and holding in this
regard. The fact that the danger was found to be obvious implicates the knowledge of
the third party as per the emphasized language in the above cited sections. As the
Majority explains, part of the disparate interpretation given to this issue by the Superior
and Commonwealth Courts5 stems from the language of comment c to Section 385.
A manufacturer of a chattel who puts it upon the market
knowing it to be dangerous and having no reason to expect
that those who use it will realize its actual condition is
liable for physical harm caused by its use (see § 394). As the
liability of a servant or an independent contractor who erects
a structure upon land or otherwise changes its physical
condition is determined by the same rules as those which
determine the liability of a manufacturer of a chattel, it follows
that such a servant or contractor who turns over the land with
knowledge that his work has made it dangerous in a manner
unlikely to be discovered by the possessor is subject to
liability both to the possessor, and to those who come upon
the land with the consent of the possessor or who are likely to
be in its vicinity.
Restatement (Second) of Torts § 385, cmt. c (emphasis added).
As the Majority explains, interpretation of the language of the portions of
Restatements adopted by this Court as accurate pronouncements of the common law in
this Commonwealth are not subject to statutory interpretation rules but dependent on the
purpose, reasoning, and policy considerations attending their adoption. Tincher v.
4 The question reads as follows: “Whether an out-of-possession contractor cannot be
subject to liability under Section 385 of the Restatement of Torts for injuries to third-parties
where the dangerous condition of the structure erected by the contractor is well-known
to the possessor of land?”
5Gilbert v. Consolidated Rail Corp., 623 A.2d 873 (Pa. Cmwlth. 1993); and Gresik v. Pa.
Partners, L.P., 989 A.2d 344 (Pa. Super. 2009) and their progeny. The Majority Opinion
provides a thorough summary of these holdings, so I do not repeat those analyses here.
[J-66-2022] [MO: Todd, C.J.] - 5
Omega Flex, Inc., 104 A.3d 328, 353-54 (Pa. 2014). In evaluating this purpose,
reasoning, and policy, the Majority emphasizes the prerequisite conditions mentioned
above, i.e., knowledge of the dangerous condition and the lack of care or negligence in
creating it. Where my view differs from the Majority is in the contours it creates concerning
foreseeability.
The Majority interprets the language of Section 388(b), not as one of a list of three
preconditions for liability, but as a factor, if present after potential liability has been
established by virtue of negligence and knowledge, that triggers the additional duty to
warn. Maj. Op. at 29. Similarly, the Majority interprets Section 389 as rendering
latency/patency a non-factor to third party liability because it states that warning of the
dangerous character will not excuse liability to those still ignorant of that dangerous
character. Id. I find these interpretations strained in terms of the plain meaning of the
language, and ultimately inconsistent with the reasoning behind our adoption of the
Restatement sections involved.6
I also disagree with the Majority’s reliance on Section 395 as applicable to this
case because it pertains to a chattel inherently dangerous if not properly made. Section
395 speaks to a manufacturer’s knowledge of a dangerous condition, not foreseeability.
6 The Majority’s response that the issue of warnings as implicated in sections 388(c) and
389 address latent dangerous conditions and are not at issue in this case is one with
which I agree. Maj. Op. at 30 n. 18. Respectfully, however, that response misses the
point. First, those sections address “suppliers,” not necessarily the
manufacturer/contractor whose negligence is at issue and where the imposition of liability
to third parties is at issue. The fact that there is a duty to warn of a latent dangerous
condition of which the supplier is aware does not by some implication extend liability for
patent dangerous conditions as that patency affects the manufacturer/contractor’s
foreseeability requirement. In some cases, the issue of a manufacturer or contractor
warning of latent dangerous conditions may concern a duty of the manufacturer to the
party with which it has privity, and thus in turn affect the relative liability between a
manufacturer and a warned or unwarned supplier to an injured third party. But again, that
is not implicated in this case where the dangerous condition was found to be obvious as
a matter of law by the trial court. See n.7 infra.
[J-66-2022] [MO: Todd, C.J.] - 6
For inherently dangerous products, the knowledge of the dangerous condition is imputed
to the manufacturer when it knows that product is not properly made, i.e., “he should
recognize [the lack of reasonable care] as involving an unreasonable risk . . .”
Restatement (Second) of Torts § 395. A defect in making a product that is not inherently
dangerous will not necessarily create a dangerous condition. Only if a manufacturer is
aware of a dangerous condition as opposed to a mere defect will liability to third parties
attach. For inherently dangerous products, it is enough that the manufacturer knows it
was defectively made. Nowhere in the case below did any party rely on the inherent
dangerousness of the type of construction at issue. In any event, Section 395 does not
negate the foreseeability requirements attendant to the latency/patency issue at hand
whatever the basis for the contractor’s knowledge of the dangerous condition may be.
As noted, the genesis of the principles implicated by the issues in this case are
traced to Judge Cardozo’s opinion in MacPherson where he stated:
[T]he presence of a known danger, attendant upon a known
use, makes vigilance a duty. We have put aside the notion
that the duty to safeguard life and limb, when the
consequences of negligence may be foreseen, grows out
of contract and nothing else. We have put the source of the
obligation where it ought to be. We have put its source in the
law.
MacPherson, supra at 390 (emphasis added).
The issue of latency/patency of the known dangerous condition is grounded in this
requirement of foreseeability. Where a known, negligently-caused, dangerous condition
is allowed to be exposed to expected users, a manufacturer’s liability will extend to those
users where such harm is foreseeable. Dispensing with privity as a defense in these
cases recognized that at the time of injury, the manufacturer was not in a position to
specifically correct, warn, or mitigate the danger posed with respect to the injured party.
Yet, where such injury was foreseeable because the dangerous condition caused by and
[J-66-2022] [MO: Todd, C.J.] - 7
known to the manufacturer (or in the case of Section 395, inherent dangerousness of an
improperly made chattel), was unlikely to be appreciated or realized by a foreseeable
user, that inability to correct or mitigate would not preclude liability based on a more
general duty than that premised on contractual duty or privity. The principles attendant
to the MacPherson decision and its articulation in the Restatement did not impose
foreseeability of injury where the dangerous condition was readily apparent, and any
efforts or obligations of mitigation or avoidance of that danger was in the hands of others.
MacPherson involved a defective wheel in an inherently dangerous product, which was
not apparent to foreseeable users. Id. at 386. Accordingly, I disagree that “neither
[Section 395] nor the MacPherson decision on which it is based, limits a manufacturer’s
liability to only chattels with latent defects.” Maj. Slip Op. at 30. To the contrary, it is the
latency of the dangerous condition that contributes to the foreseeability of harm to third
parties.
Additionally, the Majority’s position is antithetical to the law of this Commonwealth
regarding the liability of a possessor of land to invitees upon the premises. In Carrender
v. Fritterer, 469 A.2d 120 (1983) this court held the following.
Thus, as is made clear by section 343A of the Restatement,
“[a] possessor of land is not liable to his invitees
for physical harm caused to them by any activity
or condition on the land whose danger is known
or obvious to them, unless the possessor should
anticipate the harm despite such knowledge or
obviousness.”
Restatement [(Second) of Torts] § 343A. See Atkins v. Urban
Redevelopment Auth. of Pittsburgh, 489 Pa. 344, 352–53,
414 A.2d 100, 104 (1980) (“the law of Pennsylvania does not
impose liability if it is reasonable for the possessor to believe
that the dangerous condition would be obvious to and
discovered by his invitee”); Palenscar v. Michael J. Bobb, Inc.,
439 Pa. 101, 106–07, 266 A.2d 478, 480, 483 (1970) (same);
[J-66-2022] [MO: Todd, C.J.] - 8
Repyneck v. Tarantino, 415 Pa. 92, 95, 202 A.2d 105, 107
(1964) (same); Kubacki v. Citizens Water Co., 403 Pa. 472,
170 A.2d 349 (1961) (same). A danger is deemed to be
“obvious” when “both the condition and the risk are apparent
to and would be recognized by a reasonable man, in the
position of the visitor, exercising normal perception,
intelligence, and judgment.” Restatement, supra, § 343A
comment b. For a danger to be “known,” it must “not only be
known to exist, but ... also be recognized that it is dangerous
and the probability and gravity of the threatened harm must
be appreciated.” Id. Although the question of whether a
danger was known or obvious is usually a question of fact for
the jury, the question may be decided by the court where
reasonable minds could not differ as to the conclusion. See
Restatement, supra, § 328B comments c and d.
Carrender v. Fitterer, 469 A.2d 120, 123–24 (Pa. 1983).7 The effect of the Majority’s
holding is to impose a more stringent foreseeability burden on a contractor than a
possessor of the land.
Several jurisdictions have reached similar conclusions to that which the trial court
adhered in this case. In Sanchez, supra, the California court concluded the dangerous
condition the contractor created in allowing pooling of water on uncovered landings and
stairwells was patent as a matter of law and “[t]he obvious nature of the defect would
allow the owner and users to take steps to remedy the condition or to take precautions
against injury.” Sanchez, supra at 1471. “Inasmuch as the defective condition that was
reasonably dangerous to life and limb was not latent, the contractor and subcontractor
7 The Majority contends “the principles of Carrender remain relevant factors to be
considered by the finder of fact in its ultimate apportionment of liability.” Maj. Op. at 36
n.20. However, while the Court in Carrender stated, “Although the question of whether a
danger was known or obvious is usually a question of fact for the jury, the question may
be decided by the court where reasonable minds could not differ as to the conclusion.”
Carrender supra at 124. As noted earlier, the trial court in this case made such a finding
in its grant of summary judgment. The Carrender Court also explained Section 343A
speaks to a possessor’s lack of duty owed to an invitee for an obvious dangerous
condition, and not to any basis for apportionment of fault under assumption of the risk or
comparative principles. Id. at 125.
[J-66-2022] [MO: Todd, C.J.] - 9
had no liability to a third person injured thereby after the owner’s acceptance of the
structure.” Id. The Maryland Supreme Court in dicta stated:
In following the modern trend, we hold that privity is not an
absolute prerequisite to the existence of a tort duty. The duty
of the architects and the builders in this case, to use due care
in the design, inspection, and construction of this
condominium extended to those persons foreseeably
subjected to the risk of personal injury created, as here, by a
latent and unreasonably dangerous condition resulting from
their negligence.
Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 517
A.2d 336, 343–44 (Md. 1986) (emphasis added). Finally, in applying Rhode Island law,
the U.S. District Court, D. Rhode Island, held:
Moreover, the strongest case for the rejection of the rule of
nonliability is presented where, as here, the negligently
created defect is latent and concealed, and renders the
work done imminently dangerous to third persons whose
subsequent use of the premises should reasonably have been
foreseen.
Pastorelli v. Associated Engineers, Inc., 176 F.Supp. 159, 167 (D.C.R.I. 1959) (emphasis
added). While these decisions are not binding upon this Court and, in some instances,
involve dicta, they do illustrate the nexus between latency of a dangerous condition and
the foreseeability by a contractor of harm occurring from its negligently created dangerous
condition. The duty imposed upon manufacturers, and by extension contractors, to third
parties by MacPherson and the Restatement of Torts requires three elements; the
negligent cause of a dangerous condition, the knowledge the dangerous condition exists,
and the foreseeability of harm, which includes the question of whether the dangerous
condition is patent or latent. In this case, the trial court determined the dangerous
condition was patent as a matter of law, a finding we must accept in this appeal, meaning
the requirement of foreseeability has not been established. A manufacturer or contractor
is not expected to foresee that third parties will ignore patent dangers to their own
[J-66-2022] [MO: Todd, C.J.] - 10
detriment. The practical effect of the Majority’s position is to make manufacturers and
contractors strictly liable under conditions where they are not in a position to correct or
ameliorate against the dangers posed while possessors and third parties need not take
any precautions against dangers of which they are aware. Because I do not believe this
was the intent of MacPherson or the articulation of its principles through the Restatement
as adopted in this Commonwealth, I respectfully dissent.
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