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A contractor or subcontractor who is not in control of a work site has no duty to ensure the safety of the site for employees, the Pennsylvania Supreme Court ruled 5-2. Just because a contractor or subcontractor is subject to the regulations of the Occupational Safety and Health Administration does not mean the contractor or subcontractor has a “presence” at the work site in control of a subordinate subcontractor, and therefore liability cannot attach, the majority said. Chief Justice John Flaherty wrote the majority opinion in Leonard v. Pennsylvania Department of Transportation. Justices Russell Nigro and Thomas Saylor dissented. According to the opinion, in 1988, PennDOT entered into a contract with Kiewit Eastern Co. and Perini Corp. for the improvement of Interstate 476 in Delaware County. Kiewit/Perini, the contractors, agreed to demolish existing structures to assist in the rebuilding of several bridges along the highway. Kiewit/Perini entered into a subcontract with High Steel Structures Inc. to make and erect steel for the bridges. High Steel then subcontracted with Cornell and Co. for erection of all the steel. PennDOT also subcontracted with Construction Methods and Coordination Inc. for supplemental inspection and safety monitoring services. Harold Leonard, a Cornell employee, fell 40 feet to the ground while working on the Chester Road Bridge, sustaining injuries to his back and right elbow. There was no safety net under the bridge. Leonard was wearing a safety belt, but it was not connected to any safety device. Leonard sued PennDOT and every contractor and subcontractor for negligence, arguing that his injuries were caused by dangerous work conditions that were caused by inadequate safety equipment and procedures. A trial before the Delaware County Common Pleas Court resulted in nonsuits or directed verdicts in favor of all defendants. Flaherty outlined the trial court’s reasons for its ruling. “The trial court reasoned that sovereign immunity protected PennDOT from liability; that Cornell, as Leonard’s employer, was responsible for work-related injuries under the [Workers'] Compensation Act and therefore not subject to negligence claims; that CMC was contractually obligated to provide supplemental safety equipment wherever PennDOT directed, but that PennDOT had not asked CMC to inspect the structural steel work area of the bridge, and, hence, that CMC had no duty there,” Flaherty said. “Further, with regard to Kiewit/Perini and High Steel, the court reasoned that such parties had no involvement in erection of the steel, that they had no personnel assigned to the site, and that they exercised no control over Leonard or his working conditions because such work, including compliance with safety requirements, had been contractually delegated to Cornell.” The Commonwealth Court affirmed the trial court. Flaherty said the high court granted allocatur to the case to decide whether a contractor or subcontractor who is not “present” at a work site may nonetheless be in “control” of the site, and thereby imposing a duty to keep the work site safe. The question also considers whether the contractor of subcontractor may delegate that duty to a subordinate subcontractor. DUTY UNDER OSHA The Commonwealth Court said Kiewit/Perini and High Steel had no duty to Leonard because they were not involved in the erection of the steel, not present at or control of the work site, had no control over how Leonard performed his job, and they had delegated all responsibility of the work site to Cornell. But Leonard argued on appeal that Kiewit/Perini and High Steel had regulatory and contractual duties under the Occupational Safety and Health Administration regulations to provide a safe workplace that surpassed the provisions of their contract with Cornell. Specifically, Leonard relied on Section 1926.10(a) of the OSHA regulations, which states that employees should not be required to work in areas or conditions that are hazardous to their health or safety. Leonard also cited Section 1926.16(c), which says “the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.” The Commonwealth Court concluded those provisions do not deal with the assignment of liability among contractors, but rather which parties are subject to OSHA enforcement provisions. Flaherty said the high court agreed with the intermediate appellate court’s reasoning. “The regulations cited by Leonard expressly state that they concern the scope of enforcement of OSHA requirements,” he said. “The fact that OSHA requirements were applicable to the project does not, however, mean that Kiewit/Perini or High Steel had a presence at the site or control over the work done by Cornell. Absent those elements, liability does not attach.” Leonard also argued that the contracts between PennDOT and Kiewit/Perini, and then with High Steel, said the work would be done in accordance with safety guidelines and that those contracts created a duty to him, providing a basis for liability. But Flaherty said Cornell assumed all of the contractors’ safety responsibilities. “The mere fact that contracts initially placed responsibility on Kiewit/Perini and High Steel does not make that responsibility nondelegbale; nor does it give them a presumed presence at the site or control over the manner in which the subcontractor performed its work,” Flaherty said. “To hold otherwise would mean that one could subcontract for the performance of work but not successfully delegate the safety responsibility that normally accompanies that work. Logically, safety responsibility best rests on the subcontractor doing the work, for that party is most familiar with the work and its particular hazards.” DISSENT In the dissent, Nigro said that the way he saw it, Kiewit/Perini and High Steel voluntarily agreed to abide by all the applicable safety regulations in the construction of I-476. “Thus, in my view, both Kiewit/Perini and High Steel assumed a nondelegable duty to maintain a safe work site for the employees working on the site, including Mr. Leonard,” Nigro said. “Nondelegable duties often arise where an employer has certain duties that are considered so important to the community that the employer cannot discharge these duties by simply delegating performance to another. These duties may also be created where a statute or administrative regulation imposes a duty upon an employer to provide specific safeguards for the safety of others. Maintaining employee safety at the workplace is a strong public policy at both the state and federal level.” Nigro said he also did not agree with the majority’s holding that Kiewit/Perini and High Steel were not immune because they were not present at and had no control of the work site. “In my view, Kiewit/Perini and High Steel clearly had control over Cornell’s work as a result of their respective contracts, in which they both undertook the obligation to ‘keep direct control and see that the work is properly supervised and is performed satisfactorily and efficiently,’ and to ‘comply at all times’ with applicable safety regulations,” he said.

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