Opinion
J-A20038-16 No. 1693 WDA 2015
10-19-2016
LARRY ARNOLD, ADMINISTRATOR OF THE ESTATE OF ERIC ARNOLD, DECEASED, ON BEHALF OF THE ESTATE OF ERIC ARNOLD, DECEASED, LARRY ARNOLD, ADMINISTRATOR OF THE ESTATE OF ERIC ARNOLD, DECEASED, ON BEHALF OF THE NEXT OF KIN OF ERIC ARNOLD, DECEASED, AND LARRY ARNOLD, IN HIS OWN RIGHT, Appellants v. RICHARD KAPOSY; AND/OR RICHARD KAPOSY D/B/A TREEMAN LANDSCAPING; AND/OR RICHARD KAPOSY D/B/A COUNTRY BOYZ CUTTING CITY TREES; AND/OR RICHARD KAPOSY D/B/A COUNTRY BOYZ TREE SERVICE; DUQUESNE LIGHT COMPANY; KAYLA WELLER; AND/OR MATTHEW WELLER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered September 28, 2015 in the Court of Common Pleas of Allegheny County, Civil Division, No(s): GD-12-006927 BEFORE: BOWES, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Larry Arnold ("Arnold"), administrator of the Estate of Eric Arnold ("the Estate"), deceased, on behalf of the Estate, the next of kin of Eric Arnold ("Decedent") and in his own right, appeals from the Order entering summary judgment against him and in favor of Richard Kaposy ("Kaposy") d/b/a Treeman Landscaping; and/or Kaposy d/b/a Country Boys Cutting City Trees; and/or Kaposy d/b/a Country Boys Tree Service; Duquesne Light Company ("Duquesne Light"); and Kayla Weller ("Weller") and/or Matthew Weller ("Matthew") (collectively, "the Wellers") (all Appellees collectively referred to as "Defendants"), and dismissing all claims against Defendants with prejudice. We affirm.
On April 20, 2010, Decedent was killed while trimming a tree on the Wellers' property. The Wellers had hired Kaposy, Decedent's employer, to remove a tree from their property located at 4737 Robert Drive, Pittsburgh, Pennsylvania. Kaposy sent Decedent and his brother, Arnold, to remove the tree. While Decedent was trimming the tree, a tree limb came into contact with an electric line owned by Duquesne Light. As a result, Decedent was electrocuted and died.
Arnold filed a Complaint alleging that the Wellers, as owners of the property, breached their duty of care to Decedent, who was a business invitee on the Wellers' property, causing his death. Arnold further averred that Duquesne Light breached its duty of care to the decedent, causing Decedent's death. At the close of discovery, Defendants filed a Motion for summary judgment, to which Arnold filed a Response. After argument, the trial court granted Defendants' Motion for summary judgment, and dismissed all claims against Defendants with prejudice. Arnold timely filed a Notice of appeal.
Arnold now presents the following claims for our review:
I. Whether the trial court erred in granting summary judgment in favor of [the Wellers,] where there are material issues of fact as to whether they were negligent and their negligence was a proximate cause of the injuries and damages suffered by [Decedent,] for which the [Wellers] are liable, which should be decided by a jury?Brief for Appellant at 4 (some capitalization omitted).
II. Whether the trial court erred in granting summary judgment in favor of Duquesne Light ...[,] where there are material issues of fact as to whether [it was] negligent and [its] negligence was a proximate cause of the injuries and damages suffered by [Decedent,] for which [Duquesne Light] is liable, which should be decided by a jury?
III. Whether the trial court's entry of summary judgment in favor of [] Defendants is contrary to the applicable standard for granting summary judgment in that the trial court resolved factual issues notwithstanding language couching the decision as an absence of any genuine issue of material fact as to whether [] Defendants breached any duty of care owed to [Decedent]?
"An appellate court may disturb the decision of a trial court granting or denying summary judgment pursuant to Pa.R.C.P. 1035.1-1035.5 only if it determines that the trial court committed an error of law or abused its discretion." Farabaugh v. Pa. Tpk. Comm'n , 911 A.2d 1264, 1267 (Pa. 2006) (citation omitted).
Summary judgment is proper only where there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. Karoly v. Mancuso , 619 Pa. 486, 65 A.3d 301, 308-09 (Pa. 2013); see also Pa.R.C.P. 1035.2(2) (summary judgment proper if, after completion of discovery relevant to motion, adverse party who would bear burden of proof at trial fails to produce evidence of facts essential to cause of action or defense which in jury trial would require issues to be submitted to jury). In considering a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and all doubts as
to whether a genuine issue exists are resolved against the moving party. Karoly , [65 A.3d] at 309. The record for purposes of deciding a motion for summary judgment includes the pleadings, depositions, answers to interrogatories, admissions, and affidavits, Pa.R.C.P. 1035.1(1), (2), but oral testimony alone, of the moving party or his witnesses, i.e., affidavits or depositions, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact, see id., 1035.2 note (citing Penn Center House , Inc. v. Hoffman , 520 Pa. 171, 553 A.2d 900 (Pa. 1989); Borough of Nanty-Glo v. Am. Sur. Co. of New York , 309 Pa. 236, 163 A. 523 (Pa. 1932)). Moreover, "[t]he questions of whether there are material facts in issue and whether the moving party is entitled to summary judgment are matters of law." Alderwoods (Pennsylvania) , Inc. v. Duquesne Light Co., 106 A.3d 27, 34 n.5 (Pa. 2014) (citations omitted). Finally, our scope of review of questions of law is de novo, and we need not defer to the lower court's determinations. Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (Pa. 2010) (citation omitted).Bailets v. Pa. Tpk. Comm'n , 123 A.3d 300, 304 (Pa. 2015).
Arnold first argues that the trial court improperly granted summary judgment in favor of the Wellers, where there existed material issues of fact as to whether the Wellers were negligent, and whether the Wellers' negligence was a proximate cause of Decedent's death. Brief for Appellant at 8. Arnold asserts that the Wellers were negligent in failing to (a) contact Duquesne Light to advise that workers trimming trees would bring them in close proximity to the overhead power lines; (b) request that Duquesne Light de-energize the lines while work was being performed, or take other necessary actions to safeguard the lives of the workers, while they performed work bringing them in close proximity to the power lines; (c) advise, instruct, inform and warn Kaposy that the work he had contracted to perform would bring its employees into close proximity of the power lines; (d) warn Decedent directly and/or through his employer that the work he was to perform would bring him into close proximity with the overhead power lines; (e) exercise reasonable care to make the premises safe for Decedent; (f) advise Decedent that the overhead power lines were energized; (g) warn Decedent of the peculiar risk posed by the power lines, a risk unusual to the work being performed; (h) make Decedent aware of the latent danger/risk that the power lines would pose when working in close proximity to those lines, "and which constituted a latent defect[,] since they had not been de-energized; and/or (j) advise Decedent that there were power lines running through the tree that were hidden or unable to be seen. Id. at 8-9. Arnold further argues that the evidence established that the Wellers were aware that power lines are dangerous, that the lines could be "problem," and that the lines were "running close to the tree." Id. at 13. Arnold asserts that the evidence met the criteria for establishing liability under the Restatement (Second) of Torts § 343A. Id. at 10.
In its Opinion, the trial court addressed Arnold's claim and concluded that it lacks merit. Trial Court Opinion, 2/18/16, at 6-15. We agree with the sound reasoning of the trial court, and affirm on the basis of the trial court's Opinion with regard to Arnold's first claim. See id. We additionally observe the following.
"[G]enerally, landowners employing independent contractors are exempt from liability for injuries to an independent contractor's employees absent an exercise of control over the means and methods of the contractor's work[.]" Farabaugh , 911 A.2d at 1273. However, Section 414 of the Restatement (Second) of Torts, which has been adopted in Pennsylvania, sets forth one such exception to this general rule by imposing liability on the landowner when the owner retains control over the manner in which the work is done:
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.Restatement (Second) of Torts § 414.
Our review of the record discloses no evidence that the Wellers retained control over any part of the work. Further, when viewed in a light most favorable to Arnold, the evidence established that the danger posed by the electric line was known and obvious to Kaposy. The evidence established that on the day of the incident, Decedent rode with Kaposy to the Wellers' residence. N.T., 2/17/14, at 31. During that ride, Kaposy discussed the presence of power lines at the job site with Decedent. Id. at 31, 56. Once at the Wellers' residence, Kapsoy told Decedent to pay attention to Kaposy's inspection of the job site. Id. at 32. At that time, Kaposy testified, he inspected the tree in relation to the power lines:
I looked at it a couple of different times. I walked around the tree and looked at everything. I looked at the angle of the limbs coming up compared to where the high voltage was at, and there was probably 12 foot, ten to 12 foot of clearance between where the limbs were and where the voltage line [sic].Id. at 33. Kaposy further indicated that electricity was an issue in every job. Id. at 35, 55-56. Thus, when viewed in a light most favorable to Arnold, the evidence established that the danger posed by the power lines was known and obvious to Kaposy.
Arnold next claims that the trial court improperly granted summary judgment against him and in favor of Duquesne Light. Brief for Appellant at 15. Arnold asserts that Duquesne Light was negligent for, inter alia, failing to trim the tree at or near the distribution line; failing to divert, relocate, remove or properly inspect that line; failing to place a device(s) to minimize/eliminate the dangerous condition; failing to comply with applicable codes, standards and/or regulations with regard to the tree/lines; failing to adequately warn of the inherent danger created by the line; failing to exercise the highest degree of care; and failing to perform periodic and routine safety inspections. Id. at 15-16.
Upon our review of the parties' briefs and the certified record, we agree with the trial court's conclusion that Arnold's claim lacks merit. See Trial Court Opinion, 2/18/16, at 15-20. We therefore affirm on the basis of the Trial Court's Opinion with regard to this claim. See id.
In his third claim, Arnold asserts that in granting summary judgment in favor of Defendants, the trial court improperly resolved factual issues, "notwithstanding language couching the decision as an absence of any genuine issue of material fact as to whether [] Defendants breach any duty of care owed to [Arnold and the Decedent]? Brief for Appellant at 24. Arnold asserts that the trial court improperly determined the credibility of the report filed by Sam Sero, P.E. ("Sero"). Id. at 26.
Our review discloses that the trial court did not render credibility determinations regarding the content of Sero's Report. Rather, the trial court addressed whether the statements of fact contained in the Report are supported by any evidence of record, and whether Sero indicated that he was qualified to render an opinion as to certain statements contained in the Report. See Trial Court Opinion, 2/18/16, at 9-12 (discussing deficiencies in Sero's Report), 15-18 (discussing the lack of evidence supporting Sero's conclusions). We discern no error or abuse of discretion by the trial court regarding its analysis and conclusions. Accordingly, Arnold is not entitled to relief on this claim.
For the foregoing reasons, we affirm the Order granting summary judgment in favor of Defendants.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/19/2016
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