Hannon v. Lowe's Home Centers, Inc.
MEMORANDUM (Order to follow as separate docket entry) re 63 MOTION for Summary Judgment filed by Lowe's Home Centers, Inc. Signed by Honorable James M. Munley on 1/17/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LOWE’S HOME CENTER, INC. d/b/a :
LOWE’S HOME IMPROVEMENT,
LOWE’S HOME CENTER,
Third-Party Plaintiff :
WE DO THAT CONSTRUCTION,
TODD ROMANCZUK, KITCHEN &
FLOORING CONTRACTOR, INC., and :
Before the court for disposition is Defendant Lowe’s Home Center,
Inc.’s (hereinafter “Lowe’s”) motion for summary judgment. (Doc. 63). For
the reasons that follow, we will grant the motion.
This matter arises out of a June 8, 2012 personal injury incident at
Lowe’s Home Center Store in Bartonsville, Pennsylvania. At that time,
Lowe’s subcontracted with Third-Party Defendant We Do That Construction
and its owner, Todd Romanczuk (collectively “WTDC”), to perform home
construction and installation of decking and siding. (Doc. 76, Def. Lowe’s
Statement of Uncontested Facts (hereinafter “SOF”) ¶¶ 2, 5, 6).1 Lowe’s
also generally contracted with Third-Party Defendant Kitchen & Flooring
Contractor, Inc. and its owner, Jerome Saylor (collectively “Kitchen &
Flooring”), to perform interior installation and remodeling work. (SOF ¶¶
16, 20). Kitchen & Flooring never subcontracted work to WDTC. (SOF ¶
Lowe’s contacted WDTC and Kitchen & Flooring to build a display
house for its store. Lowe’s did not pay Kitchen & Flooring’s owner,
Defendant Saylor, for work on the display. (SOF ¶ 27). Similarly, WDTC
agreed to work on the display voluntarily with the goal of obtaining future
sales from Lowe’s. (SOF ¶ 41). Plaintiff Matthew Hannon, an employee of
WDTC, worked on the display house. (SOF ¶¶ 1, 51, 65). While lifting the
roof of the display house, plaintiff broke his wrist when the roof fell on his
arm. (SOF ¶¶ 65, 68). No Lowe’s employees were present at the time of
plaintiff’s injury. (SOF ¶ 66).
On November 14, 2014, plaintiff filed a complaint against Lowe’s
advancing one claim of negligence for failing to supervise, instruct, or
We cite to Lowe’s SOF (Doc. 76) for statements which plaintiff generally
agrees with in his response or are deemed admitted. (Doc. 77).
otherwise monitor construction of the display house. (Doc. 1, Compl.). On
January 16, 2015, Lowe’s filed a third-party negligence complaint against
WDTC and Kitchen & Flooring. (Doc. 9, Third-Party Compl.).
On October 12, 2016, Lowe’s filed the instant motion for summary
judgment on plaintiff’s complaint. The parties have briefed their respective
positions and the matter is ripe for disposition.
The court has jurisdiction pursuant to the diversity statute, 28 U.S.C.
§ 1332. Plaintiff is a citizen of Pennsylvania. (Doc. 1, Compl. ¶ 1).
Defendant/Third-Party Plaintiff Lowe’s “is incorporated under the laws of a
state or jurisdiction other than the Commonwealth of Pennsylvania,” with its
principal place of business in North Carolina. (Doc. 9, Third-Party Compl. ¶
1). Third-Party Defendants WDTC and Kitchen & Flooring are citizens of
Pennsylvania. (Id. ¶¶ 2-5). Because complete diversity of citizenship
exists between the parties and the amount in controversy exceeds
$75,000, the court has jurisdiction over the case. See 28 U.S.C. § 1332
(“[D]istrict courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different States[.]”). As a
federal court sitting in diversity, the substantive law of Pennsylvania shall
apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158
(3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
Standard of Review
Granting summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. See
Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P.
56(c)). “[T]his standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
In considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the
motion. Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949
(3d Cir. 1990). The burden is on the moving party to demonstrate that the
evidence is such that a reasonable jury could not return a verdict for the
nonmoving party. Anderson, 477 U.S. at 248. A fact is material when it
might affect the outcome of the suit under the governing law. Id. Where
the nonmoving party will bear the burden of proof at trial, the party moving
for summary judgment may meet its burden by establishing that the
evidentiary materials of record, if reduced to admissible evidence, would be
insufficient to carry the nonmovant’s burden of proof at trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its
burden, the burden shifts to the nonmoving party, who must go beyond its
pleadings, and designate specific facts by the use of affidavits, depositions,
admissions, or answers to interrogatories demonstrating that there is a
genuine issue for trial. Id. at 324.
As previously stated, plaintiff filed a single-count negligence
complaint against Lowe’s asserting that Lowe’s negligently failed to
supervise, instruct, or otherwise monitor construction of the display house.
Presently, Lowe’s moves for summary judgment on plaintiff’s negligence
claim, contending that it cannot be held liable for injuries sustained by one
of its subcontractor’s employees. After a careful review, we agree with
In Pennsylvania, a cause of action in negligence requires a plaintiff to
establish four elements: (1) the defendant had a duty to conform to a
certain standard of conduct; (2) the defendant breached that duty; (3) such
breach caused the injury in question; and (4) the plaintiff incurred actual
loss or damage. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011)
(citation omitted). In the instant matter, Lowe’s challenges the existence of
a duty, which “consists of one party’s obligation to conform to a particular
standard of care for the protection of another.” R.W. v. Manzek, 888 A.2d
740, 746 (Pa. 2005) (citing Atcovitz v. Gulph Mills Tennis Club, 812 A.2d
1218, 1222 (Pa. 2002)). “Whether a defendant owes a duty to a plaintiff is
a question of law.” In re TMI, 67 F.3d 1103, 1117 (3d Cir. 1995) (citations
In the construction context, a party that hires a general or
independent contractor is generally exempt from liability for injuries
sustained by the general contractor’s employees. Farabaugh v. Pa.
Turnpike Comm’n, 911 A.2d 1264, 1273 (Pa. 2006); see also RESTATEMENT
(SECOND) OF TORTS § 409 (“[T]he employer of an independent contractor is
not liable for physical harm caused to another by an act or omission of the
contractor or his servants.”). The hiring party, however, must use
“reasonable care to make the premises safe or give adequate and timely
warning of dangers known to him but unknown to the contractor or his
employees.” Farabaugh, 911 A.2d at 1273 (citing Crane v. I.T.E. Circuit
Breaker Co., 278 A.2d 362, 363-64 (Pa. 1971) (citations omitted)).
Pennsylvania law provides two exceptions to this rule: (1) the hiring
party retained and exercised “control over the means and methods of the
contractor’s work” or (2) the work being performed poses a “special danger”
or is “particularly risky.” Id. at 1274, 1276. Plaintiff appears to argue only
that the “retained control” exception applies. The contours of the exception
are explained in the comment to the Restatement:
[F]or the [retained control exception] 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.
RESTATEMENT (SECOND) OF TORTS § 414, cmt. c (citing LaChance v. Michael
Baker Corp., 869 A.2d 1054, 1058-59 (Pa. Commw. Ct. 2005)).
Here, no evidence of record indicates that Lowe’s retained control
over the methods and manner pertaining to construction of the display
house. In fact, the only evidence related to such control is the deposition of
a Lowe’s store manager, Wayne Brooks, who testified that Lowe’s project
specialist interior, Adrienne Lopez (hereinafter “PSI”), wanted to build the
display house. (Doc. 78, Ex. A, Dep. of Wayne Brooks at 18-19). Plaintiff
also cites to the purported testimony of the PSI, who “sketched something
up in conjunction with the general contractor[,]” including dimensions for the
display house, and also “helped paint the inside” of the display. (Doc. 77,
Pl.’s Ans. to Def. Lowe’s SOF (hereinafter “Pl.’s Ans.”) at 2). While the PSI
may have provided “a rough idea of what she wanted” to Kitchen & Flooring
(SOF ¶ 33), the testimony proffered by plaintiff clearly indicates that the
process of designing the display house was collaborative rather than
controlling. (Pl.’s Ans. at 2-4).
Notwithstanding the process of designing the display house, plaintiff
cites no evidence demonstrating that the PSI, or any other Lowe’s
employee, actually controlled the methods of work exercised by WDTC or
Kitchen & Flooring on the display house. Indeed, no evidence of record
indicates that Lowe’s retained a right of supervision over Kitchen & Flooring
or WDTC’s work such that these contractors were not free to construct the
display house as they saw fit. In fact, Kitchen & Flooring and WFTC built
the display without so much as a blueprint or drawing. (SOF ¶ 34).
Based upon the undisputed record, plaintiff has failed to adduce
evidence sufficient to prove that Pennsylvania’s “retained control” exception
applies to the general rule that an employer is exempt from liability for
injuries sustained by the general contractor’s employees. As such, with
respect to plaintiff’s sole claim of negligence, we find that Lowe’s had no
duty to conform to a certain standard of conduct and is thus entitled to
judgment as a matter of law.
For the foregoing reasons, the court will grant Lowe’s motion for
summary judgment. An appropriate order follows.
Date: January 17, 2017
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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