Landlord Responsible For Negligently Hiring Roofing Contractor
Written by: Alan Nochumson
When leasing a property, a property owner must keep the property in good repair. Unless the property owner maintains the property himself or herself, this requires the property owner to retain the services of independent contractors throughout the course of his or her property ownership.
In Eagle Truck Services LLC v. Wojdalski, 2014 Phila. Ct. Com. Pl. LEXIS 134 (Apr. 22, 2014), Philadelphia Court of Common Pleas Judge Frederica A. Massiah-Jackson, in a sharply worded memorandum opinion, explains why she, during a non-jury trial, found a property owner liable for damages sustained by his tenants as a result of a fire caused by a contractor who was replacing the roof to one of the buildings located on the property.
In Wojdalski, a commercial landlord leased space in separate buildings located on an 8-acre industrial park to a truck repair company as well as to an auto mechanic’s shop, the opinion said.
During their tenancy, a complaint was lodged by the owner of the auto mechanic’s shop about the roof in the building leaking. The landlord solicited bids from a couple of contractors, the opinion said. The landlord awarded the work to the contractor with the lower bid, the opinion said.
According to the opinion, the landlord located the contractor, Pawel Wojdalski, from a website of contractor listings and reviews, which had listed the contractor as a “four out of five” star contractor on the website.
Prior to retaining the services of the contractor, the landlord did not read any of the reviews on the website or ask about the contractor’s prior roofing experience, the opinion said.
When Wojdalski was retained, he provided the landlord with a certificate of insurance for general contracting work with no exclusions for roofing and also a brochure, the opinion said.
Wojdalski remediated the leaky roof by performing small roof patching jobs on separate occasions. At the completion of the work, the landlord did not inspect the patching jobs, and indicated its satisfaction with the work because, according to the landlord, “the roof stopped leaking.”
Despite the patching jobs, the landlord elected to retain Wojdalski to install a new flat rubber roof for the building that had experienced the leaky roof.
The installation of the rubber roof required the use of propane roofing torches attached by hose to propane tanks. According to the opinion, the contractor explained that the rubber roof material would be rolled out and heated by torch to connect the edges and that the installation of the rubber roof required the use of fire extinguishers or buckets filled with water in the event of a fire.
Unbeknownst to the landlord at the time, Wojdalski was not certified as a roofer and did not attend any trade classes to learn how to install a torch roof, but rather all of the contractor’s experience came from on-the-job training, the opinion said. During his on-the-job training, Wojdalski admitted he was managed by a supervisor and was never the lead on any of the roofing projects, the opinion said.
While Wojdalski knew not to leave gas tanks on the roof, one evening during the project, he left the gas tanks, as well as the torches, on the roof of the building because he believed that the tanks were empty, the opinion said.
The following morning, a fire started on the building, spreading to the building housing the truck repair company.
During its investigation, the fire department noted the cause of the fire as an “open flame (roofer’s torch).”
Both buildings were destroyed in the fire and both tenants suffered significant damages to the personal property located within their respective leased premises. Both tenants subsequently filed suit in state court against the landlord and others.
At a non-jury trial presided by Massiah-Jackson, the landlord was found liable to the tenants and a six-figure judgment was entered in favor of the tenants and against the landlord. The judgment was then appealed by the landlord to the Superior Court of Pennsylvania.
In a memorandum opinion, Massiah-Jackson, among other things, detailed her legal rationale for finding the landlord liable for the damages sustained by the tenants due to the landlord’s negligent hiring of the contractor.
Massiah-Jackson believed that the landlord negligently failed to hire a competent and careful contractor under Section 411 of the Restatement (Second) of Torts.
Under Section 411 of the Second Restatement, “an employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.”
While the general rule in Pennsylvania is that the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor, exceptions to this general rule of non-liability exist in situations where the property “owner has retained control of the work designated to the contractor, or, the work creates a peculiar unreasonable risk of harm or special danger to others unless precautions are taken, or, the owner negligently selected a contractor.”
First, Massiah-Jackson summarily dismissed the argument that the landlord retained control of the timing, manner of work or other supervisory function.
Massiah-Jackson was also not persuaded by the argument made by the tenants “that the nature of the roofing work, the use of propane torches, and risk of fire is a special danger and/or peculiar risk.” In essence, Massiah-Jackson was unwilling to “conclude as a matter of law that the risk of the destructive fire was contemplated by [the landlord] at the time he entered into the contract” with Wojdalski.
Massiah-Jackson, however, believed that the landlord’s conduct fell into the final exception to the general rule, as the landlord “failed to exercise reasonable care to employ a competent roofer to do the work which he knew required special skill and care in the use of torches, propane tanks and safety equipment, he is liable for his failure to maintain the premises for these” tenants.
Comment (a) of Section 411 of the Second Restatement defines a “competent and careful contractor” as being “a contractor who possesses the knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others, and who also possesses the personal characteristics which are equally necessary.”
In a harshly worded section of the memorandum opinion, Massiah-Jackson stated that the record reveals that the contractor did not possess “the common sense, knowledge, skill, training or experience for a major roof installation of this magnitude which a reasonable owner/lessor should have realized that a contractor must have in order to do the work they were employed to do.” In doing so, Massiah-Jackson pointed out that the contractor “was unable to explain why certain procedures were in place to ensure no fires and no hot spots and no smoldering of roof materials at the end of the workday” and, thus, “failed to appreciate the risks and danger associated with empty propane tanks.”
Massiah-Jackson then relied upon comment (c) of Section 411 of the Second Restatement, which indicates the following factors determining the amount of care that should be exercised in selecting an independent contractor: “(1) the danger to which others will be exposed if the contractor’s work is not properly done; (2) the character of the work to be done—whether the work lies within the competence of the average man or is work which can be properly done only by persons possessing special skill and training; and (3) the existence of a relation between the parties which imposes upon the one a peculiar duty of protecting the other.”
Massiah-Jackson blasted the landlord for the lack of care the landlord exhibited in hiring a roofing contractor to handle flammable materials. Among other things, in her memorandum opinion, she noted that the landlord never checked the roofing contractor’s employment references or inspected the roofing contractor’s prior roof repair work, and even admitted he initially selected the contractor “because he was the cheapest contractor.”
The memorandum opinion in Wojdalski should remind all landlords in Pennsylvania that due care is required when selecting and overseeing the work of independent contractors on their properties.
It seems from the memorandum opinion that the landlord in Wojdalski took some, but not all, reasonable steps expected from a landlord under the circumstances. In order to protect a landlord from being placed in the same situation, attorneys representing landlords should advise them to obtain proof of insurance from the contractor and be placed as an additional insured on the insurance, proof that the contractor is licensed to perform contracting services in Pennsylvania and the municipality in which work is being performed, and, most of all, proof that the contractor has performed work similar for which the contractor is being retained.
Reprinted with permission from the June 17, 2014 edition of The Legal Intelligencer © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.