J-A12020-17

                                  2017 PA Super 267

    BRIAN S. BAIRD AND LAURA BAIRD, :          IN THE SUPERIOR COURT OF
    HUSBAND AND WIFE                 :              PENNSYLVANIA
                                     :
                   Appellants        :
                                     :
                                     :
              v.                     :
                                     :
                                     :         No. 1251 WDA 2016
    PATRICK SMILEY, JR. T/D/B/A TRI- :
    COUNTY BUILDERS, A/D/B/A TRI- :
    COUNTY GARAGE DOORS, AND :
    FAIRMAN'S    ROOF     &   FLOOR :
    TRUSSES, INC. A/D/B/A FAIRMAN'S :
    ROOF TRUSSES, INC.               :

                  Appeal from the Order Entered July 26, 2016
                In the Court of Common Pleas of Cambria County
                       Civil Division at No(s): 2012-2746


BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

OPINION BY RANSOM, J.:                                FILED AUGUST 18, 2017

        Appellants, Brian and Laura Baird, appeal from the order entered July

26, 2016, denying their motion to remove the entry of nonsuit as to Appellee

Patrick Smiley, Jr. t/d/b/a Tri-County Builders, a/d/b/a Tri-County Garage

Doors, following a jury trial that resulted in a $501,107.41 verdict in

Appellants’ favor against Fairman’s Roof & Floor Trusses, Inc. a/d/b/a

Fairman’s Roof Trusses, Inc.1 We affirm.

____________________________________________


1
   “Where a court has entered a judgment of compulsory nonsuit, the appeal
lies not from the entry of the judgment itself, but rather from the court's
refusal to remove it.” Vicari v. Spiegel, 936 A.2d 503, 508 n.5 (Pa. Super.
2007) (citation omitted).
J-A12020-17



         The relevant facts and procedural history are as follows. Roger Grow

entered into a contract with Appellee Patrick Smiley, Jr. of Tri-County

Builders (“Smiley”) to act as general contractor for the construction of a

large pole building on Grow’s property (“the Grow job”). Smiley hired Chris

Fisher of Chris Fisher Construction as the primary subcontractor to supply

labor and supervise the building of the structure.             Fisher hired Appellant

Brian Baird to work as a laborer/carpenter.            Smiley introduced Fisher to

Grow as the primary builder. Notes of Testimony (N.T.), Smiley, 6/29/2016,

at 3-9 (“N.T. Smiley”).

         Fisher began work in October 2011. See N.T., Fisher, 6/27/2016, at 9

(“N.T. Fisher”).    Smiley did not frequent the jobsite or retain any right of

supervision.    See N.T. Smiley at 9-14.         Fisher told Smiley when he was

ready for certain materials, and Smiley would order them. See N.T. Fisher

at 8; see also N.T. Smiley at 14-15.

         Smiley ordered the trusses for the roof from Appellee Fairman’s Roof

Trusses (“Fairman’s”).     Smiley provided specifications for the design to

Fairman’s, including the length, pitch (slope), and spacing between each

truss.      See N.T., Fairman, 6/28/2016, at 10-11 (“N.T. Fairman”).                 A

Fairman’s     employee    sketched    a    design,    which    Smiley      subsequently

approved.      See id. at 12.   Thereafter, Fairman’s manufactured the forty-

one, eighty-foot long trusses according to Smiley’s specifications; each truss

weighing approximately eight-hundred pounds.              See id. at 5, 9-10.        In

addition,    Fairman’s   informed    Smiley     in   writing   that   an    engineering

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J-A12020-17



professional should design a bracing plan as well as be on site for the

installation. Id. at 12-13.

      The laborers and carpenters used Fisher’s equipment and structure

bracing components to build the pole structure.       See N.T. Fisher at 12.

Fisher and another laborer set the posts on the side of the building, and,

using a machine, they built the sidewalls, placed 2-by-4’s around the

outside, and fastened sheet metal for the outside of the building to form the

exterior structure. Id. at 17-18. Fisher called Smiley to extend the date of

delivery of the trusses due to rain, which Smiley did.     Id. at 11.   Smiley

arranged for the trusses to be delivered by Fairman’s around November 17,

2011. Id. at 19, 21.

      On delivery day, Mr. Fairman arrived carrying the delivery in a flatbed

truck; however, one side of the trusses hung off the truck causing all of the

trusses to bow (bend). Id. at 35. After installing the first two or three sets

of trusses, Fisher called Smiley. Fisher informed Smiley that his team was

having a hard time installing the trusses because they were bowed. Id. at

36-37. Smiley told Fisher to do his best to get the trusses up. Id.

      The bows in the trusses made them difficult to brace as the building

progressed and this threw off Fisher’s measurements. Id. at 39. However,

Fisher did not believe it was his responsibility to hire any engineering

services for the job. Id. at 31. The original bid sent out for labor by Smiley

did not advise Fisher to include the cost of an engineer for supervision of the

bracing of the trusses. Id. at 41.

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J-A12020-17



      On Friday, November 18, 2011, Fisher’s laborers set twenty trusses.

Id. at 47.    Appellant Baird worked twenty-feet above ground and used

Fisher’s tools to assist with placement of the majority of the trusses.   On

Monday, November 21, 2011, there were four trusses remaining. Id. at 48.

On that date, Baird was sitting in the middle of the last truss twenty-feet

above ground, nailing in the bottom and side braces, when the structure

collapsed. Id. at 45, 49. The four trusses set that day fell to the ground,

burying Baird beneath them. Id. at 51.

      Fisher was operating a scissor lift facing the opposite direction when

he heard a “loud snap.” Id. Fisher scrambled to find a saw to cut Baird out

of the fallen materials and debris.      As a result of the accident, Baird

sustained serious bodily injuries.

      In January 2012, Smiley retained an engineering firm to inspect the

accident scene, design a bracing plan, and supervise the installation of the

replacement trusses.    The engineering firm’s report found that the bowed

trusses had been a contributing factor to the collapse of the roof.

      In July 2012, Smiley commenced a civil action in Cambria County

against Fairman’s Roof Trusses for breach of contract and breach of

warranty. In response, Fairman’s filed a complaint to join Baird’s employer,

Chris Fisher t/d/b/a Chris Fisher Construction, as an additional defendant.

In January 2013, Baird and his wife commenced a separate civil action in

Westmoreland County against Smiley and Fairman’s for products liability,

negligent design, premises liability, negligence, and loss of consortium. See

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J-A12020-17



Baird v. Smiley et al., No. 193-2013 (Westmoreland Cty. filed 1/14/2013).

Thereafter, Smiley filed a motion to coordinate these complaints based on

the common questions of law and facts. The motion was granted, and the

case was transferred to Cambria County for coordination with Smiley’s case

against Fairman’s and Fairman’s claims against Fisher.        Thereafter, Smiley

filed a cross-claim against Fisher alleging that Fisher was either solely liable

for the claims asserted by Appellants or required to indemnify Smiley

pursuant to an alleged indemnification agreement between the parties. See

Pa.R.C.P. 1031.1.

      The trial court bifurcated the Appellants’ claims against Fisher from all

claims of liability against Smiley and Fairman’s.      The case against Smiley

and Fairman’s proceeded to a jury trial in June 2016.            At the close of

plaintiffs’ case against all defendants, the trial court granted Smiley’s oral

motion for nonsuit.      See Order, 7/1/2016.       On July 1, 2016, the jury

returned a verdict in Appellants’ favor and against Fairman’s in the amount

of $501,107.41.

      Appellants timely filed a post-trial motion for removal of compulsory

nonsuit as to Smiley and for a new trial. The court denied relief. Appellants

filed a notice of appeal and praecipe for entry of final judgement. On August

22, 2016, a final judgment was entered on the docket to reflect the jury

verdict.    Appellants   timely   filed   a   court-ordered   Pa.R.A.P.   1925(b)

statement. The trial court filed a 1925(a) opinion invoking its reasons stated

on the record on June 30, 2016, in granting Smiley’s motion for nonsuit.

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J-A12020-17



See TCO, 10/5/2016, at 3.

      On appeal, Appellant presents the following issues:

      I.    Whether the trial court erred in granting [Appellee]
            Smiley’s motion for compulsory nonsuit where it failed to
            allow Defendant Fairman’s to present its testimony
            evidence, which may have tortiously implicated [Appellee]
            Smiley?

      II.   Whether the trial court erred relying on the Common Pleas
            case of Zangradi v. Kay Builders in determining that no
            issue of material fact had been presented as to Smiley’s
            control over the installation of the roof trusses?

Appellant's Br. at 4.

      First, Appellants contend that the entry of nonsuit in favor of Appellee

Smiley at the close of Appellants’ case in chief was improper prior to the

presentation of evidence by all defendants, including Fairman’s potential

evidence against Smiley. Second, Appellants contend that the court erred in

relying upon a court of common pleas case in deciding the motion.              Both

issues challenge the propriety of the trial court’s decision to grant nonsuit in

favor of Smiley in this case. We will address Appellants’ arguments seriatim.

      Our standard of review regarding the entry of nonsuit is well settled:

      A trial court may enter a compulsory nonsuit on any and all
      causes of action if, at the close of the plaintiff's case against all
      defendants on liability, the court finds that the plaintiff has failed
      to establish a right to relief. Pa.R.C.P. No. 230.1(a), (c); see
      Commonwealth v. Janssen Pharma., 8 A.3d 267, 269 n. 2
      (Pa. 2010). Absent such finding, the trial court shall deny the
      application for a nonsuit. On appeal, entry of a compulsory
      nonsuit is affirmed only if no liability exists based on the relevant
      facts and circumstances, with appellant receiving “the benefit of
      every reasonable inference and resolving all evidentiary conflicts

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J-A12020-17


       in [appellant's] favor.” Agnew v. Dupler, 717 A.2d 519, 523
       (Pa. 1998). The compulsory nonsuit is otherwise properly
       removed and the matter remanded for a new trial.

Scampone v. Highland Park Care Ctr., 57 A.3d 582, 595–96 (Pa. 2012).

The appellate court must review the evidence to determine whether the trial

court abused its discretion or made an error of law. Barnes v. Alcoa, Inc.,

145 A.3d 730, 735 (Pa. Super. 2016).

       In   2001,    the   Pennsylvania        Rule   of   Civil   Procedure   governing

compulsory nonsuit was amended to provide:

       (c) In an action involving more than one defendant, the court
       may not enter a nonsuit of any plaintiff prior to the close of the
       case of all plaintiffs against all defendants. The nonsuit may be
       entered in favor of

              (1)    all of the defendants, or

              (2)    any of the defendants who have moved for nonsuit if
                     all of the defendants stipulate on the record that no
                     evidence will be presented that would establish
                     liability of the defendant who has moved for the
                     nonsuit.

       Note: The term “defendants” includes additional defendants.

Pa.R.C.P. No. 230.1.2 The modern trend is that a court may enter nonsuit in

____________________________________________


2
  The amendment superseded the rule formerly known as Rule 2231(h),
which allowed entry of nonsuit “in favor of any or all defendants.” Cmt. 3,
Pa.R.C.P. 230.1. The explanatory comment to the new rule states:

       This language was inappropriate since under the former rule, as
       Goodrich-Amram 2d § 2231(h):1 points out that a nonsuit may
       be entered only in favor of all defendants and not in favor of
       fewer than all defendants: But if the plaintiff makes out a prima
(Footnote Continued Next Page)


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J-A12020-17


favor of one defendant at the close of plaintiff’s case against all defendants

prior to the presentation of evidence by the defense only if the other

defendant(s) stipulate on the record that they do not intend to present

evidence as to the moving defendant’s liability.         Pa.R.C.P. 230.1(c).

Otherwise, the proper procedure for the moving defendant is to seek a

directed verdict at the end of the trial. See Pa.R.C.P. 2232(d).3

                       _______________________
(Footnote Continued)

      facie case against one or more of the defendants, then, as a
      practical matter, there will be no nonsuit proceedings at all. No
      motion can be made by the defendants until all their evidence is
      in. This is, of course not a nonsuit, but a motion for a directed
      verdict.

      New Rule 230.1(c) reflects this situation by continuing to provide
      that the court can enter a nonsuit in favor of all defendants.
      However, the rule adds the innovation that the court can enter
      judgment in favor of fewer than all defendants only “if all of the
      defendants stipulate on the record that no evidence will be
      presented that would establish liability of the defendant who has
      moved for the nonsuit.”

Cmt. 3, Pa.R.C.P. No. 230.1.
3
  Rule 2232(d) further clarifies the different procedures to obtain a nonsuit
as opposed to a directed verdict in multi-defendant litigation.

      (d) When a plaintiff joins two or more defendants and the
      evidence does not justify a recovery against all of them, the
      court shall enter a nonsuit or direct a verdict in favor of any
      defendant not shown to be liable either jointly, severally or
      separately, and the action shall continue and determine which of
      the remaining defendants are jointly, severally or separately
      liable with the same effect as though the defendants found to be
      liable were the only ones joined. As in other cases the court
      may enter judgment notwithstanding the verdict in favor of or
      against any of such defendants.

(Footnote Continued Next Page)


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J-A12020-17


      In their first issue, Appellants contend that the court erred in granting

compulsory nonsuit in favor of Smiley after Appellants had presented their

evidence as to liability because there was a strong likelihood that Fairman’s

would present inculpatory evidence against Smiley, who purchased the

trusses from Fairman’s.         Appellants’ Br. at 14 (citing in support Mazza v.

Mattiace, 425 A.2d 809, 811 (Pa. Super. 1981)).               Appellants’ theory

presented in opposition to the motion for nonsuit was that Fairman’s would

present evidence that Smiley had a duty to hire an engineer to supervise the

site from Fairman’s warning to Smiley to hire an engineer to design a plan

for installing the trusses. See N.T., 6/30/2016, at 15; Appellants’ Post-Trial

Motion, at ¶¶ 32-34.         Appellants also contend that the court erroneously

relied on Smiley’s assertion that Fairman’s consented to the motion, when

Fairman’s did not in fact join in Smiley’s motion. Appellant's Br. at 15.

      In response, Smiley contends that the evidence established that Fisher

was responsible for the truss installation process and that the duty of hiring

a design professional to ensure proper installation of the trusses was

delegated to Fisher.          See Smiley’s Br. at 30.      According to Smiley,

compulsory nonsuit was proper given that “Fairman’s offered no objection to

Smiley’s motion for nonsuit.” Smiley’s Br. at 29-30 (citing in support Ptak

v. Mason Town Men’s Softball League, 607 A.2d 297, 300 (Pa. Super.
                       _______________________
(Footnote Continued)

Pa.R.C.P. 2232.




                                            -9-
J-A12020-17


1992)). Smiley maintains that “if [Appellee] Fairman’s entire case-in-chief

was based on implicating Appellee Smiley with liability, [Fairman’s] surely

would have not only taken a position on Appellee Smiley’s motion but would

have taken a strong opposing position.” Id.

     Appellants are legally correct that it is “improper to grant a nonsuit in

favor of one defendant before the other defendants have an opportunity to

present their cases.” Ptak, 607 A.2d at 300. However, “in an action in tort

there is authority for granting a nonsuit at the close of plaintiff's case in

favor of one defendant, but only when it is clear that the other defendants

cannot or will not tortiously implicate the dismissed defendant.” Mazza, 425

A.2d at 812. The lower court is authorized to grant compulsory nonsuit as

to one defendant pursuant to Pa.R.C.P. 2232(d) “in favor of any defendant

shown not to be liable either jointly, severally or separately” following the

close of the plaintiff’s case where it is clear that the nonmoving defendant

does not intend to present testimony with respect to liability of the moving

defendant pursuant to Pa.R.C.P. 230.1. See Ptak, 607 A.2d at 300.

     Fairman’s indicated on the record that it was “not taking a position” on

Smiley’s oral motion for nonsuit.    N.T., 6/30/2016, at 15.    The issue is

whether Fairman’s lack of opposition to the motion was sufficient to satisfy

the Rule 230.1(c)’s requirement that the court can enter nonsuit in favor of

one defendant only where all “stipulate on the record that no evidence will

be presented that would establish liability of the defendant who has moved


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J-A12020-17


for the nonsuit.” Pa.R.C.P. 230.1(c)(2).           In Ptak, the defendants joined in

moving defendant’s motion for nonsuit, and the majority of witnesses who

could present evidence as to liability were already called during plaintiff’s

case- in- chief. See Ptak, 607 A.2d at 300.

       Here, the court found that Appellants had not satisfied their burden of

proof to sustain a cause of action against Smiley individually based on the

evidence presented. Fairman’s did not explicitly stipulate on the record that

it did not intend to present evidence as to Smiley’s liability pursuant to

Pa.R.C.P. 230.1(c).         Notwithstanding, Fairman’s lack of opposition to

Smiley’s motion suggested that it did not intend to present evidence as to

Smiley’s liability as part of its defense.            Further, Appellants had the

opportunity to develop a case for liability by examining all of the key

witnesses during their case-in-chief.

       Based on the record and in light of Fairman’s response, it was

reasonable for the trial court to conclude under the circumstances that

Fairman’s did not intend to present further evidence as to Smiley’s liability.4
____________________________________________


4
   Fairman’s has filed no brief in this appeal. There is simply no evidence
from Fairman’s that it intended to present additional evidence to implicate
Smiley as to liability. There is no legal authority to support Appellants’
position that the form of the nonmoving defendants’ stipulation matters
under Rule 230.1(c). We decline to delineate such a rule of form with no
substance. In light of Fairman’s response on the record, we find that it was
reasonable for the trial court to conclude that Fairman’s did not intend to
present evidence as to Smiley’s liability. Therefore, the court did not abuse
its discretion in granting Smiley nonsuit at the end of Plaintiff’s case.



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J-A12020-17


For all intents and purposes, the criteria of 230.1(c) were met. Accordingly,

we discern no abuse of discretion nor error of law in granting Smiley’s

motion for nonsuit at the close of plaintiffs’ case prior to the presentation of

Fairman’s evidence.

       Second, Appellants contend that the court erred in determining that no

issue of material fact had been presented as to Smiley’s control over the

installation of the roof trusses based on Zangrandi v. Kay Builders, 2012

WL 7801872 (Pa. D. & C. 5th 2012), an unpublished case from the Court of

Common Pleas of Lehigh County, Pennsylvania.           Appellants’ Br. at 17.

Preliminarily, we note that the court recognized on the record that it was not

bound by the court of common pleas’ decision. See N.T., 6/30/2017, at 16.

Further, the court stated on the record that it considered other authorities as

well, including the cases cited by the parties in their written motions, and it

specifically referenced this Court’s decision in Birt v. Firstenergy Corp.,

891 A.2d 1281, 1293 (Pa. Super. 2006). Thus, Appellants are incorrect to

suggest that the court decided the motion solely based on the unpublished

trial court case.

       At issue is whether Smiley owed a duty to Appellants.5       In order to

establish that a contractor owed a duty to a subcontractor’s employee, a

____________________________________________


5
  “In order to establish a claim of negligence the plaintiff has the burden of
proving four elements: 1) a duty or obligation recognized by law; 2) a
breach of that duty; 3) a causal connection between the conduct and the
(Footnote Continued Next Page)


                                          - 12 -
J-A12020-17


plaintiff must present evidence that a general contractor retained sufficient

control at the site “over the manner, method, and operative details of the

work” to be legally responsible for the harm to the plaintiff. Beil v. Telesis

Construction,      Inc.,     11    A.3d    456,     466-47     (Pa.   2011);   see   also

Restatement (Second) Torts § 414 (Am. Law Inst. 1965).

      Appellants       contend    that    they    introduced    sufficient   evidence   to

establish an issue of fact as to whether Smiley “retained control over the

installation of the roof trusses.”           Appellants’ Br. at 17.          According to

Appellants, Smiley’s duty was established by the following evidence: (1)

Fairman’s instructed Smiley to hire an engineer to design an installation

plan; (2) “Smiley specifically ordered Fisher to continue installing the trusses

despite being made aware of their defective condition;” and (3) after the

accident, Smiley hired an engineer to supervise proper installation of the

roof. Id. at 19-20. They also claim that Smiley had a duty to ensure the

materials were in good condition and installed correctly. Id. at 22.

      In response, Smiley argues that the trial court’s decision to grant

nonsuit is in accord with established law that “a contractor is not liable for

injuries resulting from work entrusted to a subcontractor.” Leonard v.



                       _______________________
(Footnote Continued)

resulting injury; and 4) actual damages.” Kelly v. St. Mary Hosp., 778
A.2d 1224, 1225 (Pa. Super. 2001) (citation omitted).




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J-A12020-17


Commonwealth, 771 A.2d 1238, 1240 (Pa. 2001); Smiley’s Br. at 14-15.6

Under Pennsylvania law, a general contractor does not have a duty to a

subcontractor’s employee unless the general contractor retained control or a

right of supervision over the performance of the work.               Birt, 891 A.2d at

1293 (noting that “a right of supervision” means “that the subcontractor is

not entirely free to do the work in his own way”). Evidence that establishes

that the contractor fully delegated the task creates a legal situation in which

“contractors higher in tier no longer had control over the manner in which

that work was done.” Leonard, 771 A.2d at at 1242.

       In Leonard, our Supreme Court took notice of a contract between the

steel supply company and contractor that had initially placed responsibility

on the general contractor, not the subcontractor supervising the actual work.

Id. The Court found that the existence of such a relationship between the

supplier   and    general     contractor       “does   not   make   that   responsibility

nondelegable; nor does it give [the general contractor] a presumed presence

at the site or control over the manner in which the subcontractor performed

its work.” Id.

____________________________________________


6
  In Leonard, our Supreme Court reviewed the questions of “whether a
general contractor or subcontractor who was not ‘present’ at the work site
may nevertheless be in ‘control’ of the work site pursuant to contract or law
so as to have a duty to make the site safe, and whether such a contractor or
subcontractor may delegate such a duty to a subordinate subcontractor.”
Leonard, 771 A.2d at 1240.




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J-A12020-17


      To hold otherwise would mean that one could subcontract for the
      performance of work but not successfully delegate the safety
      responsibility that normally accompanies that work. Logically,
      safety responsibility best rests on the subcontractor doing the
      work, for that party is most familiar with the work and its
      particular hazards. [Responsibility goes with authority]. Thus, a
      subcontractor who undertakes a task is in the best position to
      provide for the safe accomplishment thereof, and delegation of
      safety responsibility to that subcontractor does not deviate from
      the contractor's duty.

Id. (internal citations omitted).

      Like in Leonard, Fairman’s initially placed the burden of hiring an

engineer on Smiley when the trusses were supplied to Smiley with the

instruction to obtain an engineer to design a bracing plan. As in Leonard,

this assignment of responsibility does not render the responsibility to design

a bracing plan nondelegable. Leonard, 771 A.2d at 1242.

      In this case, the trial court found “no evidence that Smiley controlled

the manner in which Fisher performed his work.” See N.T., 6/30/2016, at

20.   We agree.     Here, Smiley hired Fisher based on his experience in

building pole barns; Smiley delegated the task of construction and supplying

labor completely to him.     See N.T. Smiley, at 30 (noting that Fisher had

built twenty pole barns).    Smiley did not go to the job site and made no

attempt to supervise the manner or method in which Fisher did his

construction work. Id.

      Appellee Fairman was onsite when he delivered the defective trusses

and observed the difficulties Fisher had with installing them. N.T. Fairman,

at 35, 37. Fairman and Fisher exchanged dialogue on delivery day over the

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J-A12020-17


fact that the bows made them difficult to brace. Id. at 37. Because Fisher

appeared to be “in charge,” Fairman gave the bracing instructions to Fisher,

which caused Fisher’s crew to stop putting trusses up and start adding

bracing.    Id. at 38, 40, 42.    Fairman told Fisher directly that it is very

important to follow the “X” bracing instructions to keep the trusses from

“dominoing.” Id. at 42-43.

     This evidence established that Fisher supervised the safety of Mr. Baird

and others within his control throughout the installation of the bowed

trusses. See N.T. Fisher, at 12, 17-18, 39. Fisher was more familiar with

the safety risks posed by the bowed trusses than Smiley. Id. at 39. Despite

his experience, Fisher did not think that the trusses would fall or that the

bowed trusses were dangerous. Id. Fisher could have stopped the work if

there was a safety issue.        Indeed, Fisher testified that he would have

stopped the work if he believed the trusses were dangerous.        Id. at 90.

Based on the evidence presented, Fisher failed to follow the bracing plan

provided by Fairman’s and failed to consider the trusses a safety issue. Id.

at 88.     Fisher knew he was not following the bracing specifications that

Fairman had given to him directly. Id. at 91-93.

     Although Fairman never told Fisher that Smiley should retain a

professional engineer to design the bracing, the evidence established that

Smiley had delegated the responsibilities of safety onsite to Fisher. Fisher

exercised total and complete control over the building of the structure.


                                      - 16 -
J-A12020-17


Fisher’s failure to take heed of Fairman’s instructions was the proximate

cause of Baird’s injuries.

      There is simply no evidence that Smiley controlled the manner in

which Fisher supervised the Grow project or installation of defective trusses

supplied by Fairman’s to suggest that Fisher was “not entirely free to do the

work in his own way.” Beil, 11 A.3d at 467 (quoting Restatement (Second)

of Torts § 414 cmt. c). Appellants failed to present significant evidence that

Smiley retained control over the activities onsite “beyond a general right to

order, inspect, make suggestions, or prescribe alterations or deviations.”

Beil, 11 A.3d at 467 (emphasis modified).        Further, the responsibility for

safety in this case rested with Fisher, who supervised the installation of the

trusses. See Leonard, 771 A.2d at 1242. Because the trial court’s findings

are supported by the record, we discern no abuse of the trial court’s

discretion or error of law in entering nonsuit in Smiley’s favor.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2017




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