J-A08041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ROBERT P. MAIN, III                    :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                    Appellant           :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 THE COLUMBIA GAS COMPANY OF            :    No. 1470 WDA 2018
 PENNSYLVANIA A SUBSIDIARY OF,          :
 NISOURCE INC.                          :

            Appeal from the Order Entered September 14, 2018
     In the Court of Common Pleas of Lawrence County Civil Division at
                          No(s): 11070 of 2015


BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                  FILED SEPTEMBER 9, 2019

      Robert P. Main, III appeals from the order granting summary judgment

in favor of The Columbia Gas Company of Pennsylvania (“Columbia Gas”) in

this negligence action. Main argues that the court erred in concluding that

Columbia Gas was not negligent in bringing methanol to the site where Main

was working under Columbia Gas’s subcontractor; the court erred in finding

that Columbia Gas was not vicariously liable for the subcontractor’s

negligence, because it did not retain control over the subcontractor; and the

court erred in finding Columbia Gas was not vicariously liable under the

peculiar risk doctrine. We affirm.

      Columbia Gas owns the natural gas lines servicing a residential

community in Wampum Borough, Lawrence County. Trial Court Opinion, filed

11/16/18, at 6. The gas lines include a four-inch-wide “main” pipeline, and
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smaller “service lines” that branch off to the individual residences. Id. at 8.

The lines were installed by a subcontractor, The Fishel Company (“Fishel”). By

November 25 2013, the lines had become clogged with water and ice, and

Columbia contracted with Fishel to clear the main and service lines. Id. at 6,

8, 9-10. After the main line and service lines were disconnected, the service

lines were cleared using methanol, which helps evaporate water. Id. at 10. A

Columbia Gas employee brought methanol to the site, for use by Fishel

employees, in a bottle with the word “methanol” hand-written on it. Id. at 10;

Amended Complaint at ¶ 8. Columbia Gas informed the Fishel foreman that

methanol was at the site. Tr. Ct. Op. at 10.

      Meanwhile, other Fishel employees were using a method referred to as

“pigging” to clear the main line. This involved shooting a foam bullet-like plug

(known as a “pig”) down a portion of the clogged pipe using compressed air.

Id. at 2, 8. The main line was 500 to 600 feet long, and it would take a pig

around 30 seconds to travel through it. Id. at 9. Keith Rerko, a Fishel

employee, was at the shooting end of the pigging operation. Id. Main, also an

employee of Fishel, was at the receiving end, and would retrieve the pigs from

the ground after they were ejected from the pipe. Id. at 8. Rerko and Main

remained in communication regarding when the pigs were shot and ejected.

Id. at 8-9.

      Several Columbia Gas employees were present and monitoring Fishel’s

work. Id. at 9-11, 20-21. They made occasional suggestions, such as telling

Rerko which type of weld to use on the pipe before firing pigs, and instructed

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Rerko to use two pigs at a time. Id. at 11. They also told the Fishel employees

whether the line was sufficiently clear or more pigging was needed. Id. at 9.

       At approximately 5:00 p.m., the bottle of methanol was left near the

hole where Rerko was shooting the pigs; Rerko cannot recall who left it there.

Id. at 11. On previous jobs for other employers, Rerko had used methanol to

clear water vapor from main gas lines. Rerko Dep. at 81-82. Rerko poured a

half-ounce of the methanol into the main line, and then shot air through the

line for 15-20 minutes. Tr. Ct. Op. at 11-12. Rerko did not tell anyone he had

used methanol in the main line during the pigging operation. Id. at 12.

       Rerko then resumed shooting pigs, two at a time. Id. He did so twice

without incident. Id. A Columbia Gas employee then advised Rerko to put a

rag in between the two pigs to absorb extra water, and Rerko did so.1 Id.

After those two pigs were ejected, while Main was retrieving them from the

hole, an explosion occurred which severely injured Main’s foot and ankle.

Amended Complaint at ¶ 26.

       Main initiated the instant suit against Columbia Gas by filing a Complaint

and a subsequent Amended Complaint. In his Amended Complaint, Main

alleged that Columbia Gas negligently brought methanol to the site without

training the Fishel employees on its use, warning Fishel of the inherent danger




____________________________________________


1 According to Rerko, the Columbia Gas employee “suggested or instructed”
that Rerko use two pigs with a balled-up rag between them. Rerko Dep. at
68-69.

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of using methanol, or taking other safety precautions. Main alleged that the

improper use of methanol caused the explosion which injured Main.

       Columbia Gas filed an Answer asserting that none of its own actions or

omissions proximately caused Main’s injuries. Columbia Gas also argued it did

not supervise or direct Fishel’s work performed on the gas lines. Columbia Gas

included as New Matter that the contract between Columbia Gas and Fishel

provided that Fishel was responsible for managing its employees and utilizing

safety protocols.2

       After discovery was conducted, Columbia Gas filed a motion for

summary judgment. Main filed a response, arguing, inter alia, that the

presence of methanol had created a peculiar risk. After argument, the trial

court granted summary judgment in favor of Columbia Gas and dismissed

Main’s Amended Complaint with prejudice. Main filed a petition for

reconsideration. The court heard argument and denied the petition.

       Main appealed, and raises the following questions:

       1. Did the trial court err in ruling as a matter of law that no juror
       could find that Columbia Gas was separately and independently

____________________________________________


2 The contract stated that Fishel “shall exercise the utmost care when the use
or storage for explosives or other Hazardous Materials or equipment is
necessary for the performance of the Work.” General Services Agreement at
11, ¶ 9. The contract also stated that Fishel “shall initiate, maintain, and
supervise all safety and health, loss control measures,” including any safety
programs required and regulations by the Occupational Safety and Health Act
(“OSHA”).” Id. Fishel also assumed responsibility “for the prevention of
accidents and for conducting site inspections and enforcing compliance with
all safety and health programs.” Id.


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       negligent in bringing the methanol to the work site without
       exercising proper precautions?

       2. Did the trial court err in finding that Columbia Gas could not
       possibly be liable to Main because it hired Team Fishel as an
       independent contractor to perform the work?

       3. Did the trial court err in finding Columbia Gas satisfied its duty
       to Main by merely informing a Team Fishel supervisor that
       methanol was on site?

       4. Did the trial court err in finding that Columbia Gas did not retain
       and exercise control over the means and methods of Team Fishel’s
       work so as to impose liability under Restatement (Second) of Torts
       § 414?

       5. Did the trial court err in failing to find that the work performed
       by Team Fishel was performed under unusually dangerous
       circumstances so as to involve a special danger or peculiar risk
       such as to impose liability upon Columbia Gas under Restatement
       (Second) of Torts §§ 413, 416, and/or 427?

Main’s Br. at 4 (suggested answers omitted).3

       Summary judgment should only be granted “where there is no genuine

issue as to any material fact and it is clear that the moving party is entitled to

a judgment as a matter of law.” Good v. Frankie & Eddie’s Hanover Inn,

LLP, 171 A.3d 792, 795 (Pa.Super. 2017) (quoting Hall v. CNX Gas Co.,

LLC, 137 A.3d 597, 601 (Pa.Super. 2016)). All facts and reasonable inferences

therefrom are to be viewed in the light most favorable to the non-moving

party. Id. We review the grant of summary judgment for an error of law or

abuse of discretion. Id.



____________________________________________


3We note that while Main has presented five questions, he has presented his
argument in only four sections, in contravention of Pa.R.A.P. 2119(a).

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         I. Whether Columbia Gas Was Independently Negligent

       In its first three issues, Main argues that Columbia Gas was

independently negligent for bringing methanol to the job site without

adequately warning Main of its inherent dangers. Main argues that Columbia

Gas owed a duty to him, as a business invitee, to protect him against, and

warn him of, known and unobvious dangers on the land. Main contends that

Columbia Gas breached this duty of care by bringing methanol to the work

site without taking certain safety measures, such as warning all Fishel

employees as to the dangers of methanol, training Fishel employees as to its

proper use, monitoring and controlling the location of the methanol on the job

site, and adequately labeling the methanol bottle. Main submits that these

actions and inactions by Columbia Gas were a substantial factor in causing his

injuries.

       To hold a defendant liable for negligence, the plaintiff must prove the

following four elements: (1) a legally recognized duty that the defendant

conform to a standard of care; (2) the defendant breached that duty; (3)

causation between the conduct and the resulting injury; and (4) actual

damage to the plaintiff. Nationwide Mut. Fire Ins. Co. v. Modern Gas, 143

A.3d 412, 415 (Pa.Super. 2016).

       We address only the third element, causation, as we find it dispositive.4

To prove causation, a plaintiff must demonstrate that the defendant’s breach
____________________________________________


4 Given our disposition, we need not address the other findings of the trial
court on the issue of Columbia Gas’s independent negligence.

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J-A08041-19



of duty was both the proximate cause and actual cause of the plaintiff’s injury.

Eckroth v. Pa. Elec., Inc., 12 A.3d 422, 427 (Pa.Super. 2010). Although

multiple causes may contribute to, and thus qualify as a proximate cause of

an injury, see Straw v. Fair, 187 A.3d 966, 995 (Pa.Super. 2018), appeal

denied, 202 A.3d 49 (Pa. 2019), 202 A.3d 50 (Pa. 2019), and 202 A.3d 51

(Pa. 2019), “[p]roximate cause does not exist where the causal chain of

events resulting in plaintiff’s injury is so remote as to appear highly

extraordinary that the conduct could have brought about the harm.” Lux v.

Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286-87 (Pa.Super. 2005).

Rather, an act only qualifies as a proximate cause when it was “a substantial

factor in bringing about the plaintiff’s harm.” Eckroth, 12 A.3d at 428.

       Section 433 of the Restatement (Second) of Torts provides the following

considerations for a determination of whether an act was a substantial factor

in bringing about harm:

       (a) the number of other factors which contribute in producing the
       harm and the extent of the effect which they have in producing it;

       (b) whether the actor’s conduct has created a force or series of
       forces which are in continuous and active operation up to the time
       of the harm, or has created a situation harmless unless acted upon
       by other forces for which the actor is not responsible;

       (c) lapse of time.

Restatement (Second) of Torts § 433 (1965).5


____________________________________________


5The Pennsylvania Supreme Court has cited this section as consistent with
Pennsylvania law. See Straw, 187 A.3d at 995.

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     “Where relevant facts are not in dispute and the remoteness of the

causal connection between the negligence of the original actor and the injury

is so clear, the issue becomes one of law.” Nationwide Mut. Fire Ins. Co.,

143 A.3d at 416; see also Brown v. Phila. Coll. of Osteopathic Med., 760

A.2d 863, 868 (Pa.Super. 2000) (stating proximate cause may be determined

as a matter of law, and finding defendant’s negligence was not a substantial

factor under § 433).

     Here, the trial court found that summary judgment was appropriate on

this issue because the act of Columbia Gas in bringing the methanol to the

site was not, as a matter of law, a proximate cause of Main’s injuries.

Regarding Section 433 clause (a), the number and effect of other factors that

contributed to the harm, the court found the action taken by Rerko was a

“determinative intervening factor,” as “Rerko placed an amount of methanol

in the main line, initiated a procedure which he did not consult with anyone

on, and never informed anyone he placed methanol in the main line.” Tr. Ct.

Op. at 26-27. The court stated, “Without Rerko’s independent actions, the

methanol at the site would not have been introduced to the main line, outside

of normal procedures, and based on [Main’s] theory of the case, [Main’s]

injury would not have occurred.” Id. at 27.

     Regarding Section 433 clause (b), the court found that Columbia Gas

did not create a force or series of forces that continuously led to Main’s

injuries. Id. at 26. Instead, in the court’s view, Columbia Gas created a

situation that was harmless until it was independently acted upon by Rerko.

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Id. The court noted that Columbia Gas brought the methanol to the worksite

for the legitimate purpose of its use in the service lines, and there was no

evidence that Columbia Gas brought the bottle of methanol to the pigging

operation. Id. at 25-26. The court also found that under Section 433 clause

(c), “the limited amount of time which passed between the conduct at issue

and the injury” was insufficient to determine proximate causation. Id. at 25.

         We agree that Columbia Gas’s actions were not a substantial factor in

causing Main’s injuries, and thus did not constitute proximate cause. Eckroth,

12 A.3d at 428. In bringing methanol to the worksite for use on the service

lines, Columbia Gas created a harmless situation; it was highly extraordinary

that Rerko would have independently poured the methanol, from the bottle

labeled with the word “methanol,” directly into the main pipeline, in between

shooting pigs through that same pipeline. Lux, 887 A.2d at 1286-87. As there

can be no liability for negligence without the element of causation,

Nationwide Mut. Fire Ins. Co., 143 A.3d at 415, we conclude the trial court

did not err in granting summary judgment in favor of Columbia Gas on this

issue.

          II. Whether Columbia Gas Retained Control Over Fishel

         Main argues that Columbia Gas is vicariously liable for the actions of the

Fishel employees, including Rerko, as Columbia Gas retained control over

Fishel’s work.

         Generally, the employer of an independent contractor is not liable for

harm caused by the negligence of the contractor or its employees. Beil v.

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Telesis Const., Inc., 11 A.3d 456, 466 (Pa. 2011). Some exceptions to this

rule exist, including the “retained control” exception set forth in Section 414

of the Restatement (Second) of Torts. Id. This section provides as follows:

      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.

Rest. (Second) of Torts § 414.

      Comment a to § 414 explains that an employer of a contractor is liable

under agency theory when it “retains control over the operative detail of

doing any part of the work.” Id. at Comment a (emphasis added). Comment

c provides further guidance for determining whether the employer retained a

sufficient degree of control for the exception to apply. Beil, 11 A.3d at 466. It

states:

      In order for the rule stated in this Section 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.

Rest. (Second) of Torts § 414, Comment c.




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      Synthesizing these comments, our Supreme Court has stated that the

retained control exception can be demonstrated in two ways: (1) evidence of

a contractual provision giving the employer “control over the manner, method,

and operative details of the work,” or (2) evidence that the employer

“exercised actual control” “over the manner, methods, means, or operative

detail in which the work [was] performed.” Beil, 11 A.3d at 467, 471. The

Court also clarified that the exception does not apply to the retention of “a

certain degree of authority over safety issues, such as supervising and

enforcing safety requirements.” Id. at 469. The exception is to be construed

narrowly, and the determination may be made as matter of law if the evidence

fails to establish that the employer retained a sufficient degree of control. Id.

at 467.

      Main does not argue that the contract evinces that Columbia Gas

retained control over the work, but that Columbia Gas exercised actual

control. Main argues that Columbia Gas “did not permit Team Fishel to perform

the pigging operations as it wanted.” Main’s Br. at 26. Main relies on only two

facts to support this proposition: that Columbia Gas employees instructed

Rerko to (1) use a certain type of weld, and (2) place a rag between two pigs.

Id.

      The trial court found that not only did the contract confer Fishel with the

responsibility for safety and management of hazardous materials, but “[t]he

cumulative evidence, in the light most favorable to [Main], reveals only limited

control by Columbia Gas over the manner of work, even if there was extensive

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control of what work was performed.” Tr. Ct. Op. at 18-19. The court noted

that Columbia Gas provided initial instructions to the service line crews,

instructed Rerko to use two pigs rather than one, instructed Rerko to use a

rag between the two pigs, and instructed Fishel to use a backhoe to catch the

pigs if necessary. Id. at 21. The trial court also noted Columbia Gas employees

verified whether the main line was clear or another shot was necessary, but

ultimately found that Columbia Gas did not instruct Fishel on the operative

details on how to perform the work. Id. at 20.

      We agree that, as a matter of law, Main has failed to argue that he

presented sufficient evidence to invoke the retained control exception. The

evidence he points to does not indicate that Columbia Gas exercised “control

over the manner, method, and operative details of the work.” Rather, it shows

at most that Columbia Gas intermittently exercised its right as employer of a

contractor “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.” Rest. (2nd) of Torts § 414, Comment c; Beil, 11

A.3d at 466; see Hader v. Coplay Cement Mfg. Co., 189 A.2d 271, 278-79

(Pa. 1963) (finding that site visitation and technical advice provided by

employer did not demonstrate employer retained control). Crucially, Columbia

Gas provided no instructions regarding the use of methanol to clear the main

line in the midst of the pigging operation, the aspect of Fishel’s work that

allegedly caused Main’s injuries. See, e.g., Nertavich v. PPL Elec. Utils.,

100 A.3d 221, 236-37 & n.22 (Pa.Super. 2014) (finding employer not liable

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under the retained control exception for retaining control over tagging poles

as electrically inactive, where the issuance of the tag did not cause the plaintiff

to fall off the poles he was painting), aff’d, 124 A.3d 734 (Pa. 2015). We thus

conclude that the trial court did not err in granting summary judgment on the

issue of retained control.

         III. Whether a Peculiar and Unreasonable Risk Existed

       Main’s final argument is that Columbia Gas was vicariously liable for

Fishel’s negligence under Restatement (Second) of Torts §§ 413, 416, and

427, as the work involved a peculiar risk of harm. Main asserts that Columbia

Gas created a peculiar and unreasonable risk of physical harm by bringing

methanol to the work site without taking special precautions, such as

monitoring its use and location, or conducting the fire and explosion hazard

assessment required by OSHA regulations.

       Main failed to include this issue in his Rule 1925(b) Statement of Errors.

Nowhere among the 18 issues and sub-issues included in his Statement does

Main mention that the court erred in concluding that Columbia Gas was liable

because the work presented a peculiar risk or special danger,6 or invoke these

sections of the Restatement (Second) of Torts. In its 1925(a) opinion, the trial

court observed that on appeal Main “drop[ped] the specific arguments around

. . . peculiar risk liability,” and the court accordingly does not address this

____________________________________________


6 These phrases “peculiar risk” and “special danger” as used in the
Restatement are interchangeable. Mentzer v. Ognibene, 597 A.2d 604, 610
(Pa. 1991).

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issue. Tr. Ct. Op. at 7. We therefore conclude this issue is waived. See

Pa.R.A.P. 1925(b)(4)(vii).

        Were it not waived, we would find no relief to be due. Main has offered

no evidence to establish that the act of pigging involves a peculiar risk or

special danger. Rather, the evidence indicates that the addition of methanol

to the pigging operation was not foreseeable, and the risk arose solely due to

Rerko’s “collateral negligence.” See Emery v. Leavesly McCollum, 725 A.2d

807, 814 (Pa.Super. 1999) (stating a peculiar risk must be foreseeable and

not “created solely by the contractor’s ‘collateral negligence,’ . . . [i.e.,]

negligence consisting wholly of the improper manner in which the contractor

performs the operative details of the work”) (quoting Mentzer, 597 A.2d at

611).

        Having found no issue meriting relief, we affirm the order of the trial

court granting summary judgment in favor of Columbia Gas.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2019




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