Leonard v. COM., DEPT. OF TRANSP.

NIGRO, Justice,

Dissenting.

Unlike the majority, I believe that the Commonwealth Court erred when it determined that Kiewit/Perini and High Steel were not liable for Harold Leonard’s injuries because they delegated their safety responsibilities and control of the work site to Cornell. In their respective contracts, Kiewit/Perini and High Steel voluntarily agreed to abide by all applicable federal, state, and local safety regulations in order to assure the safety of the employees involved in the construe *110 tion of Interstate 476. Thus, in my view, both Kiewit/Perini and High Steel assumed a nondelegable duty to maintain a safe work site for the employees working on the site, including Mr. Leonard. Accordingly, I must respectfully dissent from the majority.

Nondelegable duties often arise where an employer has certain duties that are considered so important to the community that the employer cannot discharge these duties by simply delegating performance to another. See Restatement (Second) of Torts §§ 411-39 (1965); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 78, at 511-12 (5th ed.1984). 1 These duties may also be created when a statute or administrative regulation imposes a duty upon an employer to provide specific safeguards for the safety of others. See Restatement (Second) of Torts § 411 (1965). Maintaining employee safety at the workplace is a strong public policy at both the state and federal level. See 29 U.S.C. § 651 (b) (Congress’ declaration that the purpose of OSHA is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions”); 43 P.S. § 25- *111 2(a) (pursuant to Pennsylvania law, “[a]ll establishments shall be so constructed, equipped, arranged, operated, and conducted as to provide reasonable and adequate protection for the life, limb, health, safety, and morals of all persons employed therein”); Commonwealth v. Butler County Mushroom Farm, 499 Pa. 509, 514 , 454 A.2d 1, 5 (1982) (the enactment of the Pennsylvania Health and Safety Act “unequivocally demonstrates a legislative concern for the safety of employees in their employment environment”).

In the Prime Contract entered into between PennDOT and Kiewit/Perini on June 14, 1988, Kiewit/Perini agreed to abide by PennDOT’s 408 Specifications, as publicized in 1987. N.T., 10/17/95, Exhibit P 1 at R. 878a. The Specifications included the following duties:

105.5 RESPONSIBILITY OF CONTRACTOR

(a) General. Keep direct control of the contract and see that the work is properly supervised and is performed satisfactorily and efficiently. Supervise the work personally or appoint a competent superintendent or representative to be on the project at all times.

(b) Work by Others. For work to be done without the supervision of the Department, investigate the work and anticipate its execution and completion.

107.08 OCCUPATIONAL SAFETY AND HEALTH— Comply at all times with applicable Federal, State, and local laws, provisions, and policies governing safety and health, including the Federal Construction Safety Act ( Public Law 91-54 ), Federal Register, Chapter XVII, Part 1926 of Title 29 Code of Federal Regulations, Occupational Safety and Health Regulations ... Take any other needed action or proceed as directed, to protect the life, health, and general occupational ivelfare of personnel employed on the project.

When, in the Engineer’s opinion, employees are exposed to extraordinary conditions which could or do constitute a *112 hazard, modify such equipment, devices, and job procedures to insure protection against the hazard or to reduce the risk to the employees engaged in the project work.

PennDOT 1987 Specifications (emphasis added), N.T., 10/17/95, Exhibit P 2, at R. 879-82a. These provisions from the Prime Contract were also incorporated into the Subcontract between Kiewit/Perini and High Steel, and High Steel agreed to uphold the provisions in its performance of the Subcontract. N.T., 10/17/95, Exhibit P 4, at R. 883-90a. Accordingly, both Kiewit/Perini and High Steel contracted to comply with OSHA regulations, including Sections 1926.104 and 1926.105 of OSHA, which mandate that an employer provide fall protection for employees working above the ground by installing either a static safety line or a safety net. See 29 C.F.R. §§ 1926.104 , 1926.105.

Based on both the clear and unambiguous terms of the Prime Contract and Subcontract as well as the important federal and state interests of maintaining employee safety, I would find that Kiewit/Perini and High Steel each had a nondelegable duty to ensure a safe work site for all of the employees on the work site. See Steuart v. McChesney, 498 Pa. 45, 49 , 444 A.2d 659, 661 (1982) (if a written contract is clear and unequivocal, it should be enforced according to the plain meaning of its words); Restatement (Second) of Torts §§ 411-39 (1965). 2 I simply cannot agree with the majority *113 that Kiewit/Perini and High Steel should be permitted to evade liability for Appellants’ injuries because they also required Cornell to uphold safety regulations while working at the site. 3 Holding both Kiewit/Perini and High Steel liable based on their independent duties to abide by applicable federal and state safety regulations would maximize employee safety, and thereby, advance the vital policies underlying those regulations. 4

I also disagree with the majority that Kiewit/Perini and High Steel were immune from liability to Appellants because they did not control Cornell’s work and were not physically present on the work site at the time Mr. Leonard was injured. In my view, Kiewit/Perini and High Steel clearly had control over Cornell’s work as a result of their respective contracts, in which they both undertook the obligation to “[kjeep direct control of the contract and see that the work is properly supervised and is performed satisfactorily and efficiently;” and *114 to “comply at all times” with applicable safety regulations. Additionally, I do not believe that contractors, such as Kiewit/Perini and High Steel, should be excused from their obligation to ensure that a work site is safe simply because they choose to remain physically absent from the work site. 5

Therefore, as I believe that both Kiewit/Perini and High Steel owed a nondelegable duty to provide a safe work site for Mr. Leonard, I would reverse the order of the Commonwealth Court and remand this case to the trial court for a jury to decide whether Kiewit/Périni and High Steel negligently performed that duty.

Justice SAYLOR joins the dissenting opinion.

. The term "nondelegable duty" is somewhat of a misnomer because an employer may properly delegate "nondelegable duties" to another, but the employer remains liable if the person to whom the performance is delegated acts negligently. Restatement (Second) of Agency §§ 214, 492-520 (1958); General Building Contractors Assoc., Inc. v. Pennsylvania, 458 U.S. 375, 395-96 , 102 S.Ct. 3141 , 73 L.Ed.2d 835 (1982). Traditionally, employers of independent contractors have been immune from liability for the negligence of a contractor or the contractor’s employees because of the employer’s lack of control over the contractor’s work. However, in recent years, courts have abandoned this independent contractor rule and found that in certain situations the employer of an independent contractor should be liable for the negligence of the independent contractor. As noted by one commentator:

The departure from the rule is based in large part on the considerations that the employer is the one who primarily benefits from the work done by the contractor; the employer selects the contractor and is in a position to select a competent and financially responsible contractor; the employer is in a position to demand indemnity from the contractor; and the insurance necessary to distribute the loss is a proper cost of the employer’s business.

John D. Schminky, The Liability of the Government Under the Federal Tort Claims Act for the Breach of a Nondelegable Duly Arising from the Petformance of a Government Procurement Contract, 36 A.F. L.Rev. 1, 3-4 (1992).

. Federal and state jurisdictions throughout the country have split on whether a contractor’s agreement to uphold OSHA regulations should be considered in determining the contractor’s duty of care. I agree with the reasoning of those jurisdictions that have found that while OSHA regulations do not create an independent basis for liability, the regulations may be considered in determining a contractor’s duty to a subcontractor’s employee when a contractor has voluntarily contracted to uphold OSHA regulations. See e.g., Teal v. E.I. DuPont de Nemours and Co., 728 F.2d 799, 803-04 (6th Cir.1984); Alloway v. Bradlees, Inc., 157 N.J. 221, 240 , 723 A.2d 960, 969 (1999); Arrington v. Arrington Brothers Construction, 116 Idaho 887, 891 , 781 P.2d 224, 228 (1989); Kelley v. Harvard S. Wright Construction Co., 90 Wash.2d 323, 331-32 , 582 P.2d 500, 505-06 (1978). Thus, as Kiewit/Perini and High Steel contracted to comply with OSHA regulations, I believe that Appellants should be entitled to introduce those regulations as evidence of Kiewil/Perini's and High Steel's duty of care and whether or not they breached that duty.

. The Commonwealth Court reached a similar conclusion in Donaldson v. Dep't of Transp., 141 Pa. Commw. 474 , 596 A.2d 269 (1991), a case in which the facts were comparable to the instant case. In Donaldson , the general contractor claimed that it was not liable to a subcontractor’s employees because the subcontractor had agreed in its subcontract to comply with OSHA regulations and provide a safe work site. The Commonwealth Court rejected this argument, declaring that a subcontractor’s duty "is not a substitute for the duty of the general contractor. Rather, the subcontractor's duty along with the duty of the general contractor is applicable to all work performed under the contract.” Id. at 484 , 596 A.2d 269 A.3d at 274. Although the majority in the instant case finds otherwise, the Commonwealth Court in Donaldson did not limit its finding that the general contractor was liable to the subcontractor’s employee based on the fact that the general contractor also exerted some control over the site by providing the defective part which caused the employee’s injury. Instead, the court determined that the general contractor could be liable to the subcontractor’s employee on two independent bases of liability: first, its own contractual duty to provide a safe work site; and secondly, the fact that it furnished the defective part. Id. at 493 , 596 A.2d at 278-79 .

. Although I do not believe that contractors should be able to avoid liability for injuries to a subcontractor's employees, 1 would note that contractors may always protect themselves by purchasing insurance or including indemnification clauses in their contracts, thereby making another party financially responsible. See e.g., Woodburn v. Consolidated Coal Co., 404 Pa.Super. 359, 367 , 590 A.2d 1273, 1277 (1991); Egan v. Atlantic Richfield Co., 389 Pa.Super. 290, 295-97 , 566 A.2d 1249, 1252-53 (1989).

. The control test used by the majority essentially encourages contractors to shrug off their safety responsibilities by abdicating their control to another and staying absent from the worksite. In my view, contractors should be encouraged to become more, not less, involved in the well-being of the employees laboring on the site from which they hope to profit. Moreover, I believe it is inequitable to allow contractors to reap the benefits of federal contracts, in which they have specifically agreed to undertake these safety responsibilities, without having any accountability whatsoever when the safety responsibilities are not fulfilled. See John L. Messina, Jr., Washington’s Industrial Safety Regulations: The Trend Towards Greater Protection for Workers, 17 U. Puget Sound L.Rev. 315, 341-42 (1994).