Opinion
319 WDA 2021
06-28-2022
RICHARD MCCURDY AND SANDY MCCURDY, HUSBAND AND WIFE Appellants v. C&K INDUSTRIAL SERVICES INC., A CORPORATION OR OTHER SIMILAR BUSINESS ENTITY; GREYCOR INDUSTRIAL CONSTRUCTORS, INC., A CORPORATION OR OTHER SIMILAR BUSINESS ENTITY; UNITED STATES STEEL CORPORATION, A CORPORATION OR OTHER SIMILAR BUSINESS ENTITY
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated February 18, 2021 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-14-001586, GD-14-001586
Joseph D. Seletyn, Esq.
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J. [*]
MEMORANDUM
PELLEGRINI, J.
Richard McCurdy (McCurdy) and Sandy McCurdy (collectively, Appellants) appeal from an order of the Court of Common Pleas of Allegheny County (trial court) granting summary judgment to C&K Industrial Services, Inc. (C&K) because the record was devoid of any disputed question of material fact with respect to Appellants' civil claims sounding in negligence. We affirm.
Sandy McCurdy raised claims concerning loss of consortium. See Complaint, 5/13/14, at ¶¶ 68-70. However, these claims are derivative of Richard McCurdy's injuries. Id. at ¶ 70 ("By reasons of the injuries sustained by Richard McCurdy, Mrs. McCurdy has been and will be in the future deprived of his support, society, companionship, love, solace, consortium, services and more . . . ."). Accordingly, our analysis focuses upon negligence.
For ease of discussion, I will utilize the spelling "Graycor" in conformity with the Majority's writing. See Majority Memorandum at 2 n.2.
I.
Graycor Industrial Constructors, Inc. (Graycor) was the general contractor for the construction of a new coke battery at U.S. Steel's Clairton Works. The construction of those flues for the new coke battery created a significant amount of dust and Graycor hired C&K to provide industrial vacuum trucks and hoses to assist in the removal of the dust. It supplied two trucks containing vacuum machines and flexible hoses that ran from the truck to the area several feet away to be vacuumed. (Deposition of James Ott, R. 139a.) There, the hose was attached by C&K to a "Safety T." Graycor employees vacuumed the flue and had complete control of and responsibility for the vacuuming process. (Graycor Letter of March 16, 2012, Randy Hynek, Safety Director of Graycor Services, R. 502a-504a.)
While the caption states "Greycor," the correct spelling is "Graycor."
The exhibits attached to C&K's motion for summary judgment are not individually numbered or designated. For ease of discussion and reference, I have assigned numbers to these documents based upon order of attachment.
For the convenience of the parties, we cite to the reproduced record.
Later in the same deposition, Baughman stated that he could not remember whether C&K had provided the at-issue PVC pipe, which conflicts with his earlier testimony. See C&K's Motion for Summary Judgment, 2/25/19, Exhibit 6 at 31. As discussed further infra, we must resolve any such uncertainties or conflict in the record in favor of Appellants.
A "Safety T" is a piece of metal piping that has three openings and is shaped like an upside-down "T." The "Safety T" sits on the floor. A separate hose is connected to the opposite side of the inverted top of the "T." That piece of hose is then run over to the top of the flue to be vacuumed. The "leg" of the "T," sticking up from the ground, has a removable cover on it. When in place, the cover completes the vacuum. When removed, the cover breaks the vacuum and eliminates the suction. The cover could be removed to break the suction in case of emergency, such as a piece of the worker's clothing being caught in the suction. (Deposition of James Ott, R. 148a-149a.)
Ultimately, all of these PVC extensions were replaced with aluminum pipe, which is a conductive material. See Waltermire Deposition at 12-13, 31; C&K's Motion for Summary Judgment, 2/25/19, at Exhibit 10 at 1-2.
Graycor employed, among others, McCurdy as a bricklayer to construct and vacuum the flues. During safety training, all workers, including McCurdy, were informed that on occasion, there would be small static-electricity "shocks" from industrial vacuuming. To alleviate the shocks, U.S. Steel/Graycor electricians attached special green tags to the vacuum equipment to certify that the equipment had been properly grounded. If the "grounds" were not green-tagged, the equipment could not be used. To assist in the vacuuming of the materials, Graycor purchased and installed a two-inch-wide, 17-foot-long ridged polyvinyl chloride (PVC) pipe and attached it with duct tape to the end of the C&K hoses. The hoses were connected to and powered by a C&K vacuum that grounded the flexible hoses and allowed the workers to reach down into the deep flues to vacuum the dust out from above.
On February 7, 2012, McCurdy was vacuuming dust and other debris with the 17-foot PVC pipe purchased and installed by Graycor. While McCurdy was operating the vacuum, "a 17-foot bolt of lightning" traveling "parallel" to the PVC pipe extension leapt from the chimney and struck him in the hands, blackening the ring and pinky fingers on each of his hands. He experienced immediate and intense pain. (Deposition of Richard McCurdy, R. 87a.) He was transported to a hospital and, following treatment, was released and assigned to light-duty.
To recover damages for his injuries, McCurdy brought suit against U.S. Steel, Graycor and C&K. See Complaint, 5/13/14, at ¶¶ 24-38. As to C&K, McCurdy alleged that it had negligently designed, assembled, monitored and operated the vacuuming operation and failed to adequately warn users of the vacuuming system of the dangerous nature of the same. He further alleged C&K violated the industry safety practices, trade practices and standards of care which are generally required and accepted within the construction industry. McCurdy asserted that C&K had "acted negligently in permitting workmen to perform tasks at the work site in a manner which violated the industry safety practices, trade practices and standards of care which are generally required and accepted within the construction industry." Id. at ¶ 34. He alleged that as a result of his injuries, he could no longer work as a bricklayer because he was experiencing pain, numbness and tingling in both hands and had pain radiating from his right hand into his arm.
McCurdy's claims against both U.S. Steel and Graycor were ultimately settled and discontinued by leave of the trial court.
Even in the absence of a contract, I would still find that C&K owed a duty under these circumstances. Pennsylvania law provides that "[a] party to a contract has two duties: a contractual duty and a legal duty to act without negligence towards both the other party to the contract and third parties." Weiser v. Bethlehem Steel Corp., 508 A.2d 1241, 1245 (Pa.Super. 1986) (collecting cases; emphasis added). Therefore, "a tort duty can arise absent privity of contract[.]" Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 282 (Pa. 2005). To that end, Pennsylvania law provides that "a subcontractor on a construction job owes to employees of other subcontractors, on the same site, the care due a business visitor from a possessor [of] land." McKenzie v. Cost Bros., Inc., 409 A.2d 362, 364 (Pa. 1979) (citing Restatement (Second) of Torts §§ 343, 384 (1965)). In this context, the touchstone of duty remains the nature of the work entrusted to the subcontractor, since this rule "applies to subject the particular contractor or subcontractor to liability for only such harm as is done by the particular work entrusted to him." Duffy v. Fischbach & Moore, Inc., 126 A.2d 413, 416 (Pa. 1956). This duty follows the principle that "[e]very workman is entitled to a workshop devoid of perilous conditions that serious reflection, reasonable anticipation, and practicable scientific preparation can avoid." Id. Based on the above discussion of C&K's specific duties at C Battery, I would find C&K also had a duty to warn the employees of other subcontractors on the job site of dangerous or unsafe conditions that it knew, or should have known, about its own industrial vacuum system.
II.
After lengthy discovery, C&K filed a motion for summary judgment arguing that McCurdy had failed to establish a prima facie case of negligence because he had not offered any evidence or testimony that C&K breached any duty of care it owed to him or that C&K's performance and equipment on this job were in any way substandard. McCurdy responded that C&K breached its duty because it should have known that attaching PVC pipe to the vacuuming system was dangerous and posed a danger to the workers involved in the project.
The trial court granted summary judgment and dismissed McCurdy's claims against C&K, finding that:
As a general matter, summary judgment is only appropriate in "those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010); see also Pa.R.C.P. 1035.2. Our standard of review in the context of summary judgment is well-established under Pennsylvania law:
When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment where the right to such judgment is clear and free from all doubt. On appellate review, then, an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals.Summers, supra (cleaned up). We also note that "[t]o the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record." Id.
With respect to his credentials, Green averred without objection from C&K that he holds a bachelor's degree in mechanical engineering and is a licensed professional engineer in sixteen states including Pennsylvania. See Appellant's Brief in Opposition to Summary Judgment, 3/29/19, Exhibit C at ¶¶ 3-4. In addition to thirty-five years of "relevant experience in industrial machinery, process systems, and construction site safety," he has "supervised projects involving dust removal using large truck mounted vacuum systems similar to those involved with this case." Id. at ¶¶ 4-5.
[McCurdy] present[ed] no reasonable theory as to how C&K was negligent in the use or the assembly of their equipment. The Plaintiffs allege no particular risk with said equipment and present no OSHA findings that would substantiate allegations of the same. To allow the [McCurdy] to proceed against this defendant would provide a jury empaneled with only enough information to guess or speculate as to what standard of care was possibly breached.Trial Court Opinion, 8/10/20, at 11.
On March 4, 2021, Appellants filed a timely notice of appeal. The trial court did not order Appellants to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) in response to this second notice of appeal and refiled the Pa.R.A.P. 1925(a) opinion it had filed in the initial appeal.
On June 19, 2020, Appellants filed their first notice of appeal purporting to be from the trial court's April 17 and May 14, 2019 orders awarding summary judgment to C&K and denying Appellants' request for a determination of finality. However, an issue impacting appealability arose when C&K refused to consent to the discontinuance of the claims against U.S. Steel and Graycor. See Pa.R.C.P. 229(b)(1) ("[A] discontinuance may not be entered as to less than all defendants except upon the written consent of all parties or leave of court upon motion of any plaintiff or any defendant for whom plaintiff has stipulated in writing to the discontinuance."). Consequently, Appellants filed a motion seeking leave to discontinue its claims against U.S. Steel and Graycor. The trial court concluded it could not rule on the motion for discontinuance due to Appellants' pending appeal. See Order, 8/5/20, at 1; Pa.R.A.P. 1701(a) ("[A]fter an appeal is taken . . ., the trial court . . . may no longer proceed further in the matter."). On September 10, 2020, this Court quashed that appeal. Appellants responded by filing a second motion to discontinue its civil claims against U.S. Steel and Graycor. C&K filed a competing motion arguing that it would be prejudiced if a partial discontinuance was granted. On February 24, 2021, the trial court filed orders granting Appellants' request for a partial discontinuance. This appeal followed.
The Majority's discussion seems to conflate the polyethylene hoses and the PVC extensions. See Majority Memorandum at 14 ("Green stated multiple times that the flexible vacuum hose provided by C&K was 'non-conductive material.'"). The relevant passages in Green's affidavit cited by the Majority refer to the PVC piping discussed above, and not to the polyethylene hoses. See Green's Affidavit at ¶ 21 ("The PVC Flex hose was non-conductive material. Non-conductive material should not be used in pneumatic systems to transport powdered materials, such as mortar dust, due to the potential static charge build-up in the transport system." (emphasis added)). While polyethylene is also a non-conductive material, this portion of the vacuum system was equipped with a spiral grounding wire. By contrast, the PVC extension was not independently grounded at the time of McCurdy's accident.
Appellants raise two issues on appeal:
I. Whether summary judgment was improperly granted by the trial court when the evidence of record shows that [C&K] negligently performed industrial vacuuming services by failing to safely design or assemble vacuuming system and/or failed to advise in the design and assembly of a vacuuming system that was dangerous as a static electric build-up was created within the pneumatic conveying transport or piping system which caused injury to McCurdy.
II. Whether summary judgment was improperly granted by the trial court when the evidence of record shows that [C&K] negligently failed to suspend operation of the pneumatic conveying transport or piping system when workers were shocked in order to properly check that the entire transport system was adequately and properly grounded and therefore exposed McCurdy to a dangerous condition which caused his injury.Appellants' Brief at 4 (cleaned up). Although stated as separate claims, both issues essentially challenge the trial court's determination that the absence of evidence of negligence by C&K entitled it to summary judgment. Accordingly, we will address these claims collectively.
III.
Appellants contend that summary judgment was improperly granted because there is evidence in the record that, if believed at trial, established that C&K violated its duty of care by negligently providing industrial vacuuming services that allowed static electricity to build up, causing McCurdy's injuries. They further argue that C&K negligently allowed the vacuuming to continue after several workers sustained a static shock before McCurdy was injured.
However, "[t]he burden of the non-moving party where summary judgment is requested is not the same as the burden during a trial of the issues, it need only be shown that there is a genuine issue as to any material fact." Prince v. Pavoni, 302 A.2d 452, 454 (Pa. Super. 1973).
To make out a negligence claim, Appellants must establish: (1) a duty to conform to a certain standard for the protection of others against unreasonable risks; (2) the defendant's failure to conform to that standard; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage to the plaintiff. Jones v. Plumer, 226 A.3d 1037, 1039-40 (Pa. Super. 2020) (citing Brewington for Brewington v. City of Philadelphia, 199 A.3d 348, 355 (Pa. 2018)). The standard used for the protection of others is always one of "reasonable care," but the care which is reasonable to require varies with and is proportionate to the danger involved in the act. Put simply, "[t]he greater the danger, the greater the care which must be exercised." Stewart v. Motts, 654 A.2d 535, 537 (Pa. 1995) (citing Restatement (Second) of Torts, § 298 comment b (1965)).
Taking this "heightened" duty of care together with certain provisions of the contract between Graycor and C&K, Appellants contend that C&K breached it duty of care because the contract places the onus on C&K to ensure that anyone working on Graycor's project is not injured using C&K's equipment. Under Pennsylvania law, "[a] party to a contract has two duties: a contractual duty and a legal duty to act without negligence towards both the other party to the contract and third parties." Weiser v. Bethlehem Steel Corp., 508 A.2d 1241, 1245 (Pa. Super. 1986) (collecting cases).
In the contract for services between Graycor and C&K, Graycor was identified as the "Contractor" and C&K was identified as the "Subcontractor." C&K agreed to "[p]rovide vacuum and other industrial services as directed." (Short form Subcontract, R. 117a.) C&K was also required to "provide the necessary competent supervision, labor, material, equipment, tools, facilities, and all other requirements for performing the below Work in accordance with the Subcontract documents." Id.
Appellants identify several contract provisions that they contend impose duties on C&K to require it to ensure that no one was injured when its vacuum truck and equipment was involved. First, the "Safety & Health" provision contained in the Standard Terms and Conditions provides that:
Contractor [Graycor] does not assume responsibility for Subcontractor's [C&K] construction means, methods, and
techniques in performing the Work. As an expert in its Work, [C&K] agrees, as to its Work, it is (a) solely responsible for the prevention of accidents to its employees and its sub-subcontractors' employees arising out of the performance of its Work, and (b) primarily responsible for the prevention of accidents to others who happen to be potentially exposed to hazards arising out of the Work as it is being performed.Id. (emphasis added.)
Appellants contend that this provision, coupled with other provisions in the Safety and Work Rule Attachment, imposed a duty of care on C&K because it was "primarily responsible for the prevention of accidents to others who happen to be potentially exposed to hazards arising out of the Work as it is being performed." Id. They argue that once it was known and obvious that several workers sustained a static shock during the vacuuming operation, C&K had a duty not to allow the vacuuming to continue. It should have been aware that the situation was dangerous and demanded the system be reviewed and redesigned for the safety of the workers involved, and it should ceased operations until that occurred.
Paragraph 1.2 of the attachment requires that the Subcontractor "have its own safety programs, safety procedures, safety equipment, safety personnel, and [] fully adhere to contractual, state, and or federal OSHA and other health and safety requirements as applicable." (See Safety & Work Rules Attachment, ¶ 1.2, R. 120a.) Paragraph 1.5 requires the Subcontractor to designate a "competent person" as required by OSHA for worksite inspection and "[a]ssured equipment grounding conductor programs." (Id. ¶ 1.5, R. 120a.)
Under this provision, in subsection (a), C&K agreed to be solely responsible for the prevention of accidents to its employees and to its sub-subcontractors' employees. However, McCurdy was employed by Graycor, the Contractor, and is not covered by this subsection. Under subsection (b), C&K is primarily responsible for the prevention of accidents but only for hazards arising out its "Work." The question, then, is whether there is any evidence in the record that C&K was negligent in the performance of its "Work."
IV.
At the outset, C&K's defined "Work" under the contract was to provide vacuum trucks and flex hoses. Graycor had complete control of and responsibility for the vacuuming process itself and its employees carried out that process. It is undisputed that McCurdy was injured in carrying out Graycor's work, not C&K's Work under the contract. It is also undisputed that Harold Toh, a Graycor supervisor, directed and oversaw the attaching of the piece of rigid ungrounded PVC pipe to the end of the flexible hose. (McCurdy Deposition, R. 86a.) Larry Ray Waltermire, a fellow bricklayer employed by Graycor, also testified that Graycor purchased the PVC pipe and that one of its foremen duct-taped the pipe to the C&K grounded pipe. (Waltermire Deposition, R. 412a.) Nothing in the record establishes that C&K or its employees failed to do something they were supposed to or that its equipment was in any way deficient in the performance of its "Work."
Nonetheless, Appellants contend that there was evidence of negligence of record in an affidavit provided by Appellants' expert, professional engineer John G. Green, II. (See Affidavit, R. 457a-464a.) Green opined that the use of PVC pipe in the vacuum system provided, constructed, maintained and supervised by C&K constituted a significant deviation from professional standards promulgated by the National Fire Protection Association (NFPA). Though he did not claim to have examined any of the actual equipment at issue in this case nor any exemplar equipment, Green stated in relevant part:
• "The incident industrial vacuum truck pneumatically conveyed the mortar dust from the flue of C battery into the holding tank on the truck using non-conductive hoses as the transport system." (Affidavit, ¶ 19, R. 459a.)
• "The PVC Flex hose was non-conductive material. Non-conductive material should not be used in pneumatic systems to transport powdered materials, such as mortar dust, due to the potential static charge build-up within the transport system. If non-conductive flexible hose is required it should contain a spiral wire specifically designed to dissipate the static electric charge to the ground." (Affidavit, ¶ 21, R. 460a (citations omitted).)
•"It should have and would have been apparent to a sophisticated supplier of industrial vacuum services, such as C&K that preventing a spark hazard due to static electricity build-up in the transport system, whether to prevent the ignition of combustible dust or vapors or to prevent static shock to a worker is necessary, and that grounding and bonding of the entire transport system, including any attachments and hoses used to facilitate the vacuuming operation is required." (Affidavit, ¶ 24, R. 461a-62a (citations omitted).)
• "While C&K may have provided grounding for the incident vacuum truck, the entire transport system was not adequately bonded and grounded as required by NFPA 77-2005." (Affidavit, ¶ 25, R. 462a.)
•"Once the transport system piping or hoses had been installed, a continuity check of the bonding and grounding should have been performed by C&K to verify the system resistance to ground is not greater than 10 ohms. Periodic checks, usually at the start of every shift, should also be performed by C&K to verify the integrity of the system has not been compromised." (Affidavit, ¶ 26, R. 462a-63a (citations omitted).)
• "The failure of C&K to follow the industry accepted recommendations established by NFPA 77-2005 Standard to provide bonding and grounding of the transport system and truck deprived McCurdy [of] the protections afforded by those recommendations and was a cause of the injury to McCurdy. (Affidavit, ¶ 27, R. 463a.)
However, just because an expert opines something does not create a material question of fact; there must be evidence in the record upon which the opinion is based. See Pa.R.E. 705 ("If an expert states an opinion the expert must state the facts or data on which the opinion is based."). In this case, as elucidated in C&K's brief, Green's opinion is at variance with the uncontroverted evidence of record or appears to be based on his assumption that because an accident occurred involving C&K equipment, C&K must be negligent.
"The mere happening of an accident or injury does not raise an inference or presumption of negligence, nor even make out a prima facie case of negligence. Rather, the plaintiff must produce evidence to support his version of the incident; theories as to what may have transpired in an automobile accident may not be employed as a substitute for such evidence." Churilla v. Barner, 409 A.2d 83, 85 (Pa. Super. 1979) (internal citations omitted). See also Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978); Commonwealth v. King, 444 A.2d 1294, 1295 (Pa. Super. 1982).
As C&K points out, Green stated multiple times that the flexible vacuum hose provided by C&K was "non-conductive material." (Affidavit, ¶¶ 19, 21, R. 459a-60a.) He goes on to declare that if a non-conductive flexible hose is used, "it should contain a spiral wire specifically designed to dissipate the static electric charge to the ground." (Affidavit, ¶ 21, R. 460a.) Contrary to that statement, though, the uncontroverted evidence of record established that C&K's hose did have the spiral wire. A letter to OSHA from Randy Hynek, Safety Director of Graycor, stated:
The equipment set-up included the vacuum truck (grounded), 6" and 3" dia. corrugated polyethylene hose with embedded wire, safety "T" (emergency shut-off valve), and 1 ½" PVC pipe taped to the 3 x 1 ½" reducer.(Graycor Letter of March 16, 2012, Randy Hynek, Safety Director of Graycor Services, R. 502a-504a (emphasis added).)
C&K also points out that in paragraph 24 of his affidavit, Green stated that C&K should have known that "grounding and bonding of the entire transport system . . . is required." (Affidavit, ¶ 24, R. 461a-62a.) However, Green's affidavit does not cite any evidence that C&K did not know it should have grounded and bonded the system, nor that C&K failed to carry out any duty it had to ground and/or bond the system.
Green also stated that, "[w]hile C&K may have provided grounding for the incident vacuum truck, the entire transport system was not adequately bonded and grounded as required by NFPA 77-2005." (Affidavit, ¶ 25, R. 462a.) He does not cite any evidence in the record establishing that the transport system was not adequately bonded and grounded, nor does any evidence in the record support that conclusion. In fact, Graycor's letter to OSHA outlines extensive grounding and bonding efforts made by Graycor.
Further, Green stated in his affidavit that a "continuity check of the bonding and grounding should have been performed by C&K to verify the system resistance to ground is not greater than 10 ohms," apparently assuming that the continuity checks were not performed. (Affidavit, ¶ 25, R. 462a-63a.) As C&K points out, Green does not point to any evidence in the record regarding whether C&K actually conducted continuity checks, nor whether C&K was tasked therewith under the contract. He also does not cite any evidence that the system resistance exceeded the 10-ohm limit at any time.
In fact, the letter from Graycor to OSHA establishes that Graycor's vacuuming procedure included "[c]ontinuity checks made periodically throughout each shift." (Graycor Letter of March 16, 2012, Randy Hynek, Safety Director of Graycor Services, R. 503a.)
Finally, Green states that "[t]he failure of C&K to follow the industry accepted recommendations established by NFPA 77-2005 Standard to provide bonding and grounding of the transport system and truck deprived McCurdy [of] the protections afforded by those recommendations and was a cause of the injury to McCurdy." (Affidavit, ¶ 27, R. 463a.) As C&K notes, Green does not point to any evidence showing that it did not follow that particular standard. It points out that Green also contradicts his earlier statement in paragraph 25 of the affidavit, wherein he said that the truck was grounded.
Because Green's report does not point to any countervailing evidence in the record to support his conclusion that C&K did not act with reasonable care, that report alone is insufficient to create a material issue of fact regarding C&K's duty of care. Accordingly, nothing in the record establishes that C&K or its employees failed to do something they were supposed to or that its equipment was in any way deficient in carrying out its Work under the contract. Because Appellants have not established a genuine issue of material fact that C&K failed to conform to its duty of care, making it negligently responsible for McCurdy's injuries, the trial court did not err in granting the motion for summary judgment.
Order affirmed.
President Judge Emeritus Bender joins the memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
BOWES, J.
I respectfully dissent. Viewing the evidence in the light most favorable to Richard McCurdy ("McCurdy") and Sandy McCurdy (collectively, "Appellants"), I find Appellants have raised a material issue of fact as to whether C&K Industrial Services, Inc. ("C&K") was negligent in permitting the use of ungrounded polyvinyl chloride ("PVC") pipe in the industrial vacuum system that it designed, constructed, and helped to operate and supervise in conjunction with Graycor Industrial Constructors, Inc. ("Graycor").1 Accordingly, I would reverse the trial court's order awarding summary judgment to C&K and remand for trial.
This case concerns a static shock injury McCurdy sustained on February 7, 2012, while working as a bricklayer assisting in the construction of C Battery at the Clairton Mill Works, which is owned and operated by the United States Steel Corporation ("USS"). Specifically, McCurdy and his fellow bricklayers were engaged in "dry bricklaying" to construct flues, which created a significant amount of dust. See C&K's Motion for Summary Judgment, 2/25/19, Exhibit 3 at 19-20 ("McCurdy Deposition").2 On the day in question, McCurdy was vacuuming dust and debris from the recently constructed battery flues. The industrial vacuum system used by McCurdy and the other workers consisted of large lengths of polyethylene hoses with spiral wire grounding that were powered by vacuum trucks parked on the exterior of C Battery. While Graycor employees like McCurdy were manning the vacuum hoses, C&K employees were actively monitoring the work and operating safety valves that could be used to shut down the system in case of accidents.
Seventeen-foot-long PVC pipe extensions were attached to the end of these polyethylene hoses, which enabled workers to vacuum the bottom of the flues. C&K's project manager at C Battery, George Baughman, testified that this PVC piping had been provided by C&K. See C&K's Motion for Summary Judgment, 2/25/19, Exhibit 6 at 11-12 (testifying that C&K had provided all of the "equipment" utilized at C Battery, which included "PVC pipe").3 The PVC pipe attached to McCurdy's hose was installed by a Graycor employee, while C&K employees were also present and observing. See Appellants' Brief in Opposition to Summary Judgment, 3/29/19, Exhibit A at 7, 11, 16-17 ("Waltermire Deposition").
The certified record establishes that the use of such PVC piping in C&K's vacuum systems was a "rare" occurrence and not typical. See C&K's Motion for Summary Judgment, 2/25/19, Exhibit 5 at 15. The reason this material was not regularly utilized by C&K seems self-evident, as an internal report generated by USS concluded that the static shock that injured McCurdy was "created by the velocity of the silica dust passing across the inside walls of the PVC pipe." See Incident Without Injury Report Form (USS 406), 2/7/12, at 1 (emphasis added). Finally, while the polyethylene hoses contained grounding wires, the PVC extensions were not independently grounded at the time of McCurdy's injury. See Waltermire Deposition at 10 ("[A]fter [McCurdy] got his electrocution, they brought in the electrician down there and put a ground wire on this PVC pipe."); id. at 25 ("They had the electricians come in and actually wire a ground wire to the PVC pipe so that it would ground out instead of shocking the employees down there.").4
With these facts in mind, I emphasize that summary judgment is only appropriate in "cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010); see also Pa.R.C.P. 1035.2. Thus, our standard of review in the context of summary judgment is well-established:
When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment where the right to such judgment is clear and free from all doubt.Id. (cleaned up). Accordingly, "[t]he burden of the non-moving party where summary judgment is requested is not the same as the burden during a trial of the issues, it need only be shown that there is a genuine issue as to any material fact." Prince v. Pavoni, 302 A.2d 452, 454 (Pa.Super. 1973) (emphasis added). To the extent there is conflict in the certified record, we must resolve such dissonance in full favor of Appellants' position. See Carollo v. Forty-Eight Insulation, Inc., 381 A.2d 990, 994-95 (Pa.Super. 1977).
Appellants allege that C&K was negligent with respect to the work performed at the vacuuming operation at C Battery. Id. at ¶¶ 25-34. Specifically, Appellants asserted C&K "acted negligently in permitting workmen to perform tasks at the work site in a manner which violated the industry safety practices, trade practices and standards of care" that are generally accepted within the construction industry. Id. at ¶ 34.
However, the trial court concluded that the evidence adduced by Appellants was insufficient to establish a prima facie case of negligence:
Appellants present no reasonable theory as to how C&K was negligent in the use or the assembly of their equipment. Appellants allege no particular risk with said equipment and present no [Occupational Safety and Health Administration ("OSHA")] findings that would substantiate allegations of the same. To allow Appellants to proceed against this defendant would provide a jury empaneled with only enough information to guess or speculate as to what standard of care was possibly breached.Trial Court Opinion, 8/10/20, at 11. Indeed, the trial court suggests that the only way for Appellants to prevail in this matter is to establish a breach of an OSHA regulation or other law that would establish negligence per se. Tellingly, the trial court has cited no precedent in support of this position.
The elements of negligence are practically axiomatic and require a Pennsylvania plaintiff to establish: (1) a duty to conform to a certain standard for the protection of others against unreasonable risks; (2) the defendant's failure to conform to that standard; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage to the plaintiff. Jones v. Plumer, 226 A.3d 1037, 1039-40 (Pa.Super. 2020) (citing Brewington for Brewington v. City of Philadelphia, 199 A.3d 348, 355 (Pa. 2018)). The dismissal of Appellants' uncomplicated civil claims for damages rests upon the first two of these elements: duty and breach.
It is well-established that "[t]he primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff." Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 280 (Pa. 2005). I note that "[t]he concept of duty in the tort setting can be intertwined with contractual notions of privity, as is the case here, where the task is to determine whether the relationship between the parties gives rise to a duty." Id. at 281. While the Majority does not dispute C&K owed some manner of legal duty to McCurdy, it seeks to diminish any such obligation by describing C&K's duties on the job site in limited terms. See Majority Memorandum at 11 ("C&K's defined 'Work' under the contract was to provide vacuum trucks and flex hoses."). To my mind, this characterization inappropriately minimizes C&K's role and is plainly at odds with the record.
At a contractual level, C&K was hired by Graycor to "provide vacuum and other industrial services as directed," which included: (1) hardware and trucks; (2) set-up of the vacuum system; (3) on-site laborers and vacuum operators; (4) supervision of the vacuum-related activities; and (5) various protective materials. See C C&K's Motion for Summary Judgment, 2/25/19, Exhibit 4 at 1-2. The same contract also provides as follows with respect to the safety of workers:
[Graycor] does not assume responsibility for [C&K's] construction means, methods, and techniques in performing the work. As an expert in its Work, [C&K] agrees, as to its Work, it is (a) solely responsible for the prevention of accidents to its employees and its sub-subcontractors' employees arising out of the performance of its work, and (b) primarily responsible for the prevention of accidents to others who happen to be potentially exposed to hazards arising out of the Work as it is being performed.Id. at 3 (emphasis added). Moreover, the record clearly evinces C&K was also tasked with overseeing worker safety. See C&K's Motion for Summary Judgment, 2/25/19, Exhibit 4 at 27-28, 40 (deposition testimony of Joseph James Ott); see also Appellants' Supplemental Brief in Opposition to Summary Judgment, 4/12/19, Exhibit D at 3 (unpaginated) (documenting that C&K collaborated with Graycor in developing a "job hazard analysis," training Graycor employees "in the vacuum work," and developing a "safety plan").
Viewed in the light most favorable to Appellants, I find that C&K's contractual duties would include ensuring that the vacuum system was safe to use and free from technical defects. As our Supreme Court has observed:
Logically, safety responsibility best rests on the subcontractor doing the work, for that party is most familiar with the work and its particular hazards. As we stated in Hader v. Coplay Cement Mfg. Co., 189 A.2d 271, 277 (Pa. 1963), "How can the other party control the contractor who is engaged to do the work and presumably knows more about doing it than the man who by contract authorized him to do it? Responsibility goes with authority." Thus, a contractor who undertakes a task is in the best position to provide for the safe accomplishment thereof . . . .Leonard v. Commonwealth, 771 A.2d 1238, 1242 (Pa. 2001) (emphasis added). Since C&K is a sophisticated corporate entity specializing in industrial vacuum systems and was retained by Graycor for that specific expertise, it makes sense for C&K to bear responsibility for the safety of that system.5 See, e.g., Heath v. Huth Engineers, Inc., 420 A.2d 758, 759 (Pa.Super. 1980) (holding engineering firm that undertook responsibilities for supervision and inspection were liable for failure to do so with "reasonable care").
Turning to the issue of breach, I note that "expert testimony is required to establish professional negligence where the determination of whether the actions were negligent is beyond the understanding of the ordinary person." Cipriani v. Sun Pipe Line Co., 574 A.2d 706, 715 (Pa.Super. 1990). Here, Appellants submitted an affidavit from professional engineer John G. Green, II, who opined, inter alia, that the use of ungrounded PVC pipe in the vacuum system deviated from professional standards promulgated by the National Fire Protection Association ("NFPA").6 See Appellant's Brief in Opposition to Summary Judgment, 3/29/19, Exhibit C at ¶¶ 16-25 ("Green's Affidavit").
In pertinent part, Green's affidavit provides as follows:
16. The [NFPA] has been addressing static electricity since the mid 1930s and officially adopted NFPA 77 - Recommended Practice on Static Electricity in 1946.
NFPA 77-2007 Section 9.3 Mechanisms of Static Electric Charging states:
9.3.1 Contact static electric charging occurs extensively in the movement of powders, both by surface friction between powders and surfaces and by friction between individual powder particles. . . .
9.3.2 Charging can be expected any time a powder comes into contact with another surface, such as in sieving, pouring, scrolling grinding, micronizing, sliding[,] and pneumatic conveying. . . .
17. The hazards associated with a discharge or spark created by the static electric build-up from pneumatically conveyed materials have been known for more than 70 years. The most notable hazard is an ignition source for combustible dust or vapors, but injuries to workers can also result from static electric discharge[.]
18. McCurdy was exposed to the discharge or spark hazard created by a static electric build-up within the pneumatic conveying transport or piping system. The combination of hazard and exposure created an unreasonably dangerous condition which was a cause of the injury to McCurdy.
19. The incident industrial vacuum truck pneumatically conveyed the mortar dust from the flue of C [B]attery into the holding tank on the truck using non-conductive hoses as the transport system.
. . . .
21. The PVC [f]lex hose was non-conductive material. Non-conductive material should not be used in pneumatic systems to transport powdered materials, such as mortar dust, due to the potential static charge build-up within the transport system. If non-conductive flexible hose is required it should contain a spiral wire specifically designed to dissipate the static electric charge to ground[:]
NFPA 77-2007 Section 9.6 Pneumatic Transport Systems states:
9.6.1 Pneumatic transport of powdered material through pipes or ducts can produce a static electric charge on both the product being transported and the
conduit. This static electric charge remains on the material as it exits the system. Precautions against accumulation of charge should be taken where the material is collected.
9.6.2 Pipes and ducts should be metal and should be grounded.
9.6.2.1 Equipment to which the conduits connect should be metal and grounded to dissipate the charge impressed on it by the transport of the material.
9.6.2.2 Where the use of pipe-joining methods or installation of piping components results in an interruption of continuity of the ground path, one of the following criteria should be met:
(1) A jumper cable should be used to maintain continuity.
(2) An independent ground should be provided for the isolated section of the conduit . . . .
9.6.3 Nonconductive pipe or ductwork should not be used.Id. (internal emphases omitted). Relying upon these NFPA standards, Green concluded that C&K was negligent to the extent that it, inter alia, permitted the use of ungrounded PVC pipes in its system. Id. at ¶¶ 21, 24-25.
The Majority concludes Green's affidavit does not establish breach of a relevant standard of care. See Majority Memorandum at 16 ("Because Green's report does not point to any countervailing evidence in the record to support his conclusion that C&K did not act with reasonable care, that report alone is insufficient to create a material issue of fact regarding C&K's duty of care."). I disagree and note that summary judgment presents an inopportune juncture to assess the credibility of expert testimony:
It has long been Pennsylvania law that, while conclusions recorded by experts may be disputed, the credibility and weight attributed to those conclusions are not proper considerations at summary judgment; rather, such determinations reside in the sole province of the trier of fact, here, a jury. Accordingly, trial judges are required to pay deference to the conclusions of those who are in the best position to evaluate the merits of scientific theory and technique when ruling on the admissibility of scientific proof.Thompson v. Ginkel, 95 A.3d 900, 905-06 (Pa.Super. 2014).
As an initial matter, I note that the trial court did not even deign to discuss the substance of Green's affidavit in its opinion. See Trial Court Opinion, 8/10/20, at 1-12. Therein, the trial court would have read that "nonconductive pipe" should not be used in setting up a vacuum system pursuant to NFPA § 9.6.3. Green's Affidavit at ¶ 22. Rather, the affidavit states that only independently grounded, metal pipework should be used for such a purpose. Id. (citing NFPA §§ 9.6.2, 9.6.2.1). Indeed, Green goes on to explain that if the use of pipework in a vacuum system results in an "interruption of continuity of the ground path," then a "jumper cable" or an "independent ground" must be installed on the pipework. Id. (citing NFPA § 9.6.2.2(1)-(2)). Id. Applying these standards to the case at hand, Green concluded that the use of PVC pipe in the vacuum system used at C Battery violated the above-quoted NFPA industry standards.7 Id. at ¶¶ 21, 24-25.
There is no dispute in the record that the PVC extensions mounted to the vacuum system were non-conductive, non-metal, and not independently grounded at the time of McCurdy's injury. Considering Green's expert opinion with the deference required by our standard of review, I find his affidavit proffers both the applicable standard of care and a breach thereof, consequently creating an issue of material fact that requires denial of summary judgment. While Graycor may have installed the length of PVC pipe that McCurdy used on the day of his injury, C&K provided that PVC pipe to Graycor and was fully aware of its inclusion in the vacuum system. Moreover, C&K employees worked side-by-side with Graycor employees while the PVC-tipped vacuum hoses were installed and actively used.
Given the scope of C&K's contractual duties and the breaches of industry standards set forth in Green's affidavit, I find Appellants have raised a material question of fact as to whether C&K breached its duty by standing mute and inert with respect to an unsafe condition that, ultimately, injured McCurdy. See, e.g., Maas v. UPMC Presbyterian Shadyside, 192 A.3d 1139, 1144 (Pa.Super. 2018) ("Where . . . the plaintiff makes a prima facie showing of a duty, the applicable standard of care, whether it was breached, and whether the breach was a cause in fact of the injury are questions of fact for the jury.").
Therefore, I respectfully dissent.
[*] Retired Senior Judge assigned to the Superior Court.