Beam, J. v. Thiele Manufacturing, LLC (memorandum)

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J- A01036- 14 N ON - PRECED EN TI AL D ECI SI ON - SEE SUPERI OR COURT I .O.P. 6 5 .3 7 JASON BEAM AND HI S WI FE, KRI STI E BEAM I N THE SUPERI OR COURT OF PENNSYLVANI A v. THI ELE MANUFACTURI NG, LLC, FORMERLY KNOWN AS THI ELE I NC., FORMERLY KNOWN AS TYT HOLDI NG, I NC. APPEAL OF: JASON BEAM No. 514 WDA 2013 Appeal from t he Order February 28, 2013 I n t he Court of Com m on Pleas of Som erset Count y Civil Division at No( s) : 1041 CI VI L 2008 BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J. MEMORANDUM BY MUNDY, J.: FI LED FEBRUARY 0 7 , 2 0 1 4 Appellant Jason Beam appeals from t he February 28, 2013 order grant ing sum m ary j udgm ent in favor of Appellee, Thiele Manufact uring, LLC ( Thiele) , and dism issing Appellant s com plaint . 1 Aft er careful review, we reverse and rem and for proceedings consist ent wit h t his m em orandum . ____________________________________________ 1 Appellant purport s t o appeal from t he order dat ed February 25, 2013, and April 11, 2013. We not e t hat on appeal, [ t ] he dat e of ent ry of an order in a m at t er subj ect t o t he Pennsylvania Rules of Civil Procedure shall be t he day on which t he clerk m akes t he not at ion in t he docket t hat a not ice of ent ry of t he order has been given as required by Pa.[ R.C.P.] 236( b) . Pa.R.A.P. 108( b) . Herein, t he t rial court s order grant ing sum m ary j udgm ent and dism issing Appellant s com plaint was ent ered on February 28, 2013, when t he clerk docket ed said order. As t his order disposed of all of t he claim s in ( Foot not e Cont inued Next Page) J- A01036- 14 The t rial court sum m arized t he relevant fact s of t his case as follows. The inst ant m at t er arises out of an accident which occurred on Decem ber 12, 2006[ ,] in which [ Appellant ] was inj ured while working in t he course and scope of his em ploym ent wit h Am erican Roofing, I nc. ( Am erican Roofing ) aft er falling t hrough a fiber glass skylight on t he roof of a building owned by [ Thiele] . Thiele is a Pennsylvania corporat ion engaged in m anufact uring dum p t rucks and has no expert ise in roofing. On Oct ober 17, 2006[ ,] Thiele and Am erican Roofing ent ered int o a const ruct ion cont ract where Am erican Roofing would perform work and replace exist ing skylight s on t he roof of a building owned by Thiele. At all t im es m at erial heret o, Am erican Roofing was an independent cont ract or by virt ue of t he cont ract t hat it had ent ered int o wit h Thiele, and [ Appellant ] was an em ployee of Am erican Roofing. On Decem ber 12, 2006[ ,] at approxim at ely 2: 13 PM, while working on a skylight pursuant t o t he const ruct ion cont ract , [ Appellant ] fell t hrough one of t he skylight s and sust ained serious inj uries. At deposit ion, [ Appellant ] t est ified t hat he was an experienced roofer[ ,] [ ] and when asked if he considered t he subj ect roof t o be out of t he ordinary from a danger st andpoint or if he considered it t o be m ore dangerous t han ot her roofs he had worked on in t he past , [ Appellant ] st at ed: No. No. I d look at t hem - - I knew it was a dangerous j ob, m y j ob in general. So I look at t hem all t he sam e, I use t he sam e precaut ions. No. [ Appellant ] adm it t ed t hat Thiele did not supervise or cont rol his work or t he work of Am erican Roofing, and furt her, t hat no one ( Foot not e Cont inued) _______________________ t he underlying lit igat ion, it was appealable as a final order. Pa.R.A.P. 341( a) ; W e ible v. Allie d Sign a l, I nc., 963 A.2d 521, 525 ( Pa. Super. 2008) ( concluding t hat t he t rial court s orders grant ing sum m ary j udgm ent were final orders for Pa.R.A.P. 341 purposes because all of t he part ies t o t he underlying lit igat ion were eit her set t led, bankrupt ed, or dism issed by t he grant of sum m ary j udgm ent ) . We have adj ust ed t he capt ion accordingly. - 2 - J- A01036- 14 from Thiele was present on t he roof or at t he worksit e. To t he cont rary, [ Appellant ] t est ified t hat Am erican Roofing supervised his work. Trial Court Opinion, 4/ 12/ 13, at 1- 2 ( foot not es cont aining cit at ions t o deposit ion t ranscript om it t ed) . 2 Following discovery, Thiele filed a m ot ion for sum m ary j udgm ent on Decem ber 5, 2012. On February 28, 2013, t he t rial court grant ed said m ot ion and dism issed t he inst ant act ion. 3 This t im ely appeal follow ed. 4 On appeal, Appellant raises t he following issue for our review. I. Did t he t rial court err in grant ing [ Thiele s] m ot ion for sum m ary j udgm ent where t he work [ Appellant ] was perform ing at t he t im e of his inj ury involved a peculiar risk of harm under t he Rest at em ent ( Second) of Tort s § 416, Where: a. Work on t he saw- t oot h fiberglass roof was specially [ sic] dangerous and peculiarly risky given it s rare and unique design, and b. [ Thiele] knew and foresaw t he risk but failed t o ensure t hat [ Appellant s] em ployer t ook t he special precaut ions necessary t o prot ect his safet y? ____________________________________________ 2 We not e t hat t he t rial court opinion does not cont ain paginat ion. Therefore, we have assigned each page a corresponding page num ber for ease of reference. 3 On March 21, 2013, Appellant unnecessarily praeciped for j udgm ent t o be ent ered before he filed his not ice of appeal. Se e su pr a n.1. 4 Appellant and t he t rial court have com plied wit h Pa.R.C.P. 1925. - 3 - J- A01036- 14 Appellant s Brief at 8. We begin by not ing our well- set t led st andard of review. [ O] ur st andard of review of an order grant ing sum m ary j udgm ent requires us t o det erm ine whet her t he t rial court abused it s discret ion or com m it t ed an error of law[ ,] and our scope of review is plenary. Pe t r in a v. Allie d Glove Cor p., 46 A.3d 795, 797- 798 ( Pa. Super. 2012) ( cit at ions om it t ed) . We view t he record in t he light m ost favorable t o t he nonm oving part y, and all doubt s as t o t he exist ence of a genuine issue of m at erial fact m ust be resolved against t he m oving part y. Ba r n e s v. Ke lle r , 62 A.3d 382, 385 ( Pa. Super. 2012) , cit ing Er ie I n s. Ex ch . v. La r r im or e , 987 A.2d 732, 736 ( Pa. Super. 2009) ( cit at ion om it t ed) . Only where t here is no genuine issue as t o any m at erial fact and it is clear t hat t he m oving part y is ent it led t o a j udgm ent as a m at t er of law will sum m ary j udgm ent be ent ered. I d. The rule governing sum m ary j udgm ent has been codified at Pennsylvania Rule of Civil Procedure 1035.2, which st at es as follows. Ru le 1 0 3 5 .2 . M ot ion Aft er t he relevant pleadings are closed, but wit hin such t im e as not t o unreasonably delay t rial, any part y m ay m ove for sum m ary j udgm ent in whole or in part as a m at t er of law ( 1) whenever t here is no genuine issue of any m at erial fact as t o a necessary elem ent of t he cause of act ion or defense which could be est ablished by addit ional discovery or expert report , or - 4 - J- A01036- 14 ( 2) if, aft er t he com plet ion of discovery relevant to t he m ot ion, including t he product ion of expert report s, an adverse part y who will bear t he burden of proof at t rial has failed t o produce evidence of fact s essent ial t o t he cause of act ion or defense which in a j ury t rial would require t he issues t o be subm it t ed t o a j ury. Pa.R.C.P. 1035.2. Where t he non- m oving part y bears t he burden of proof on an issue, he m ay not m erely rely on his pleadings or answers in order t o survive sum m ary j udgm ent . Ba bb v. Ct r . Cm t y. H osp., 47 A.3d 1214, 1223 ( Pa. Super. 2012) ( cit at ions om it t ed) , appeal denied, 65 A.3d 412 ( Pa. 2013) . Furt her, failure of a non- m oving part y t o adduce sufficient evidence on an issue essent ial t o his case and on which he bears t he burden of proof est ablishes t he ent it lem ent of t he m oving part y t o j udgm ent as a m at t er of law. I d. Thus, our responsibilit y as an appellat e court is t o det erm ine whet her t he record eit her est ablishes t hat t he m at erial fact s are undisput ed or cont ains insufficient evidence of fact s t o m ake out a prim a facie cause of act ion, such t hat t here is no issue t o be decided by t he fact - finder. I f t here is evidence t hat would allow a fact - finder t o render a verdict in favor of t he non- m oving part y, t hen sum m ary j udgm ent should be denied. I d., quot ing Re e se r v. N GK N . Am ., I n c., 14 A.3d 896, 898 ( Pa. Super. 2011) . - 5 - J- A01036- 14 Herein, Appellant argues t hat t he t rial court erred in it s grant of sum m ary j udgm ent in favor of Thiele. Specifically, Appellant claim s t hat Thiele should be held liable for his inj ury because: [ t ] he unique and unusual saw- t oot h design of [ Thiele s] t urn of t he cent ury indust rial roof, coupled wit h t he brit t le and dingy colored fiberglass skylight s, locat ed on a slant ed pit ch w[ h] ere worker s [ sic] would walk, as opposed t o a 90 degree upright angle, rendered t he circum st ances surrounding t he specific work especially dangerous and peculiarly risky. ¦ As such, [ Thiele s] failure t o t ake reasonable m easure[ s] t o ensure special precaut ions were t aken, subj ect s t hem t o liabilit y [ ] under t he Rest at em ent ( Second) of Tort s §§ 416 and 427. As such, t he [ t ] rial [ c] ourt s grant of [ s] um m ary [ j ] udgm ent should be reversed and t he m at t er rem anded for t rial. Appellant s Brief at 10- 11. Upon our careful review, we agree. The st andard of care a possessor of land owes t o one who ent ers upon t he land depends on whet her t he lat t er is a t respasser, licensee, or invit ee. Em ployees of independent cont ract ors ¦ are invit ees who fall wit hin t he classificat ion of business visit ors. ¦ The dut y of care owed t o a business invit ee ( or business visit or) is t he highest dut y owed t o any ent rant upon land. The landowner m ust prot ect an invit ee not only against known dangers, but also against t hose which m ight be discovered wit h reasonable care. A possessor of land is subj ect t o liabilit y for physical harm caused t o his invit ees by a condit ion on t he land if, but only if, he[ : ] - 6 - J- A01036- 14 ( a) knows or by t he exercise of reasonable care would discover t he condit ion, and should realize t hat it involves an unreasonable risk of harm t o such invit ees, and ( b) should expect t hat t hey will not discover or realize t he danger, or will fail t o prot ect t hem selves against it , and ( c) fails t o exercise reasonable care t o prot ect t hem against t he danger. Pennsylvania law im poses no general dut y on propert y owners t o prepare and m aint ain a safe building for t he benefit of a cont ract or s em ployees, who are working on t hat building. Rat her, our law generally insulat es propert y owners from liabilit y for t he negligence of independent cont ract ors and places responsibilit y for t he prot ect ion of t he cont ract or s em ployees on t he cont ract or and t he em ployees t hem selves. Gu t t e r idge v. A.P. Gr e e n Se r vs., I n c., 804 A.2d 643, 655- 656 ( Pa. Super. 2002) ( cit at ions om it t ed) , appeal denied, 829 A.2d 1158 ( Pa. 2003) . At t he t im e of t he incident , Appellant was an em ployee of Thiele s independent cont ract or, Am erican Roofing. Second Am ended Civil Com plaint , 6/ 29/ 09, at ¶ 11. As such, Appellant was an invit ee of Thiele. Se e Gu t t e r r idge , su pr a at 655. Accordingly, Thiele should be insulat ed from liabilit y for inj uries caused t o Appellant t hrough t he negligence of it s independent cont ract or, Am erican Roofing. Se e id. at 656. - 7 - J- A01036- 14 However, Appellant cont ends t hat Thiele is liable under t he peculiar risk or special danger except ion t o t his general rule regarding prem ises liabilit y. 5 Appellant s Brief at 13. Our Suprem e Court adopt ed t his except ion in Ph ila . Ele c. Co. v. Ja m e s Ju lia n , I n c., 228 A.2d 669 ( Pa. 1967) , from sect ions 416 and 427 of t he Rest at em ent ( Second) of Tort s, w hich are quot ed hereaft er. § 4 1 6 W or k D a n ge r ou s in Abse n ce of Spe cia l Pr e ca u t ion s One who em ploys an independent cont ract or t o do work which t he em ployer should recognize as likely t o creat e during it s progress a pe cu lia r r isk of ph ysica l harm to ot h e r s u n le ss spe cia l pr e ca u t ion s a r e t a k e n, is subj ect t o liabilit y for physical harm caused t o t hem by t he failure of t he cont ract or t o exercise reasonable care t o t ake such precaut ions, even t hough t he em ployer has provided for such precaut ions in t he cont ract or ot herwise. ¦ § 4 2 7 N e glige n ce a s t o D a n ge r I n h e r e n t in t h e W or k One who em ploys an independent cont ract or t o do work in volvin g a spe cia l da n ge r t o ot h e r s w h ich t h e e m ploye r k n ow s or h a s r e a son t o k n ow t o be inhe r e nt in or nor m a l t o t he w or k , or which he cont em plat es or has reason t o cont em plat e when m aking t he cont ract , is subj ect t o liabilit y for physical harm caused t o such ot hers by t he ____________________________________________ 5 I n describing t his except ion, t he t erm s peculiar risk and special danger have been used int erchangeably. St e in e r v. Be ll of Pe n n sylva n ia , 626 A.2d 584, 587 n.3 ( Pa. Super. 1993) . For t he purposes of our review, we will refer t o t his except ion as t he peculiar risk except ion. - 8 - J- A01036- 14 cont ract or s failure t o t ake reasonable precaut ions against such danger. Rest at em ent ( Second) of Tort s, §§ 416, 427 ( 1965) ( em phasis added) . Accordingly, a peculiar risk exist s under t he following circum st ances. ( 1) [ When] a risk is for e se e a ble t o t he em ployer of an independent cont ract or at t he t im e t he cont ract is execut ed ( t hat is, if a reasonable person in t he posit ion of t he em ployer would foresee t he risk and recognize t he need t o t ake special m easures) ; and ( 2) t he risk is diffe r e nt fr om t he usua l a nd or din a r y r isk associat ed wit h t he general t ype of work done ( t hat is, t he specific proj ect or t ask chosen by t he em ployer involves circum st ances t hat are subst ant ially out - of- t he ordinary) . Gut t e r idge , su pr a at 656- 657 ( em phasis added) , cit ing Or t iz v. Ra - El D e v. Cor p., 528 A.2d 1355, 1358 ( Pa. Super. 1987) . I n order for t he [ peculiar risk except ion] t o apply, it is not essent ial t hat t he work which t he cont ract or is em ployed t o do be in it self an ext ra- hazardous or abnorm ally dangerous act ivit y, or t hat it involve a very high degree of risk t o t hose in t he vicinit y. I t is sufficient t hat it is likely t o involve a peculiar risk of physical harm unless special precaut ions are t aken, even t hough t he risk is not abnorm ally great . ¦ I t is not essent ial t hat t he peculiar risk be one which will necessarily and inevit ably arise in t he course of t he work, no m at t er how it is done. I t is sufficient t hat it is a risk which t he em ployer should recognize as likely t o arise in t he course of t he ordinary and usual m et hod of doing work, or t he part icular m et hod which t he em ployer knows t hat t he cont ract or will adopt . [ The peculiar risk except ion] is t hus applicable only in sit uat ions in which t he negligence of t he independent cont ract or consist s of t he failure t o t ake t he precaut ions necessary for t he safe perform ance - 9 - J- A01036- 14 of a t ask. The risk of harm m ust arise from t he peculiar or inherent nat ure of t he t ask or t he m anner of perform ance, and not t he ordinary negligence which m ight at t end t he perform ance of any t ask. Liabilit y does not ordinarily ext end t o so called collat eral or casual negligence on t he part of t he cont ract or ¦ in t he perform ance of t he operat ive det ails of t he work. The negligence for which t he em ployer of a general cont ract or is liable ¦ m ust be such as is int im at ely connect ed wit h t he work aut horized and such as is reasonably likely from it s nat ure. M cD on ou gh v. U.S. St e e l Cor p., 324 A.2d 542, 546 ( Pa. Super. 1974) ( cit at ion and som e quot at ion m arks om it t ed) . As an except ion t o t he general rule of prem ises liabilit y, t he peculiar risk except ion should be const rued narrowly. Em e r y M cCollu m , 725 A.2d 807, 814 ( Pa. Super. 1999) ( en banc) . v. Le a ve sly Addit ionally, t he det erm inat ion of whet her t he fact s of a part icular case const it ut e a peculiar risk is a m ixed quest ion of law and fact and [ ] t he t rial j udge m ay m ake t his det erm inat ion as a m at t er of law in clear cases. D r um v. Sha ull Equ ip. a n d Su pply Co., 787 A.2d 1050, 1061 ( Pa. Super. 2001) ( int ernal quot at ion m arks om it t ed) , quot ing Em e r y, su pr a , appeal denied, 803 A.2d 735 ( Pa. 2002) . I nst ant ly, Appellant argues t hat t he peculiar risk except ion applies because t he work [ perform ed by Appellant ] was done under unusually dangerous circum st ances. Appellant s Brief at 20. I n part icular, Appellant claim s t hat t he work done for Thiele did not involve a general det eriorat ing flat roof, but a unique and increasingly rare saw t oot h design wit h dingy - 10 - J- A01036- 14 brit t le skylight s, [ const it ut ing] an unusual, unique and peculiar risk, which is governed by specific provisions Adm inist rat ion ( OSHA) ] . I d. of [ Occupat ional Safet y and Healt h Addit ionally, Appellant m aint ains, Thiele knew [ Am erican Roofing] had not and was not again com plying wit h OSHA s requirem ent s of fall prot ect ion for skylight s. I d. Appellant assert s, t he fact s as present ed clearly raise an issue of m at erial fact t hat [ Thiele s] roof work was specially [ sic] dangerous and part icularly risky, of which [ ] Thiele was well aware, yet failed t o ensure it s cont ract or [ ( Am erican Roofing) ] t ook t he appropriat e precaut ions for [ Appellant s] safet y. I d. at 29. I n reaching it s decision t hat no peculiar risk of harm exist ed on Thiele s roof, t he t rial court reasoned as follows. The nat ure of t he roof was clearly evident t o [ Am erican Roofing] as well as [ Appellant ] at t he out set of t he work. I ndeed, [ Am erican Roofing] had previously been engaged in prior years t o perform work on t he roof and was not ed t o have been in t he roofing business for 25 years. Working on any elevat ed st ruct ure is inherent ly dangerous due t o t he risk of falling som e dist ance. Roofers are always aware t hat a sloped roof is m ore dangerous t han a flat roof, and t he st eeper t he slope of t he roof - - t he great er t he chance of a slip and fall wit hout a prot ect ive harness t o cat ch t he worker. I t is furt her abundant ly clear t hat t he corrugat ed m et al roof areas provide great er st ruct ural st abilit y t han t he t ranslucent fiberglass panels which allowed t he sun s illum inat ion t o ent er t he building. I n ot her words, t here was not hing unique or posing a peculiar risk of harm t hat was not abundant ly clear t o even an unt rained worker regarding t he risk of fall from t he roof in t his case. [ ] Thiele as owner of t he prem ises should not be subj ect t o except ions from t he general rule t hat an owner engaging an independent - 11 - J- A01036- 14 cont ract or t o t ake possession of [ t he] prem ises for t he com plet ion of work should be liable for t he inj uries t o t he cont ract or s em ployees. Trial Court Opinion, 4/ 12/ 13, at 8. I n addit ion, t he t rial court relied upon t he following port ion of Appellant s deposit ion t est im ony when grant ing Thiele s m ot ion. Q: ¦ Did you consider t his [ roof] t o be a m ore dangerous roof t han ot her roofs you had worked on in t he past ? A: No. No. I d look at t hem - - I knew it was a dangerous j ob, m y j ob in general. So I look at t hem all t he sam e, I use t he sam e precaut ions. No. Q: So roofing is a dangerous j ob? A: Yeah, roofing is a dangerous occupat ion. N.T., 2/ 18/ 10, at 37; se e a lso Trial Court Opinion, 4/ 12/ 13, at 2. Upon reviewing t he record in t he light m ost favorable t o Appellant and resolving all doubt s as t o t he exist ence of a genuine issue of m at erial fact against Thiele, we conclude m at erial issues of fact exist t hat preclude t he award of sum m ary j udgm ent in t he inst ant proceedings. Se e Ba r n e s, su pr a . As t he t rial court focused it s decision upon t he second prong of t he peculiar risk t est , i.e., t he risk is different from t he usual and ordinary risk associat ed wit h t he general t ype of work done[ ,] we will discuss t hat prong first . Se e Gu t t e r idge , su pr a at 657. Appellant ret ained Michael C. Wright PE ( Professional Engineer) , CSP ( Cert ified Safet y Professional) , CPE ( Cert ified Plant Engineer) , and President - 12 - J- A01036- 14 of Safet y t hrough Engineering, I nc., t o aut hor a report regarding t he uniqueness of t he roof on Thiele s building. Supplem ent al Brief in Opposit ion t o Mot ion for Sum m ary Judgm ent , 2/ 22/ 13, Ex. 7. Wit hin his report , Wright described t he roof as follows. I n t he subj ect 19t h- Cent ury Saw- Toot h roof building design, t he roof was const ruct ed wit h fiberglass roof deck panels which were int egrat ed int o st andard m et al roof deck panels, in order, t o perm it nat ural sun light t o penet rat e int o t he building. ¦ However, t his fact ory building design concept was very unique and did creat e a peculiar risk and becam e inherent ly dangerous t hrough t he t im e exposure of t he UV sun light . The subj ect fact ory building roof skylight design concept was very unique because m ost roof skylight design and inst allat ions were done wit h t he skylight s being vert ical or nearly vert ical. Also t he roof skylight would t ypically be above t he roof approxim at ely four feet in order t hat t he workers would not accident ally fall t hrough t he skylight . However, t he subj ect 19t h- Cent ury Saw- Toot h roof building design and const ruct ion was very unique and did creat e a peculiar risk of harm t o t he workers. Wit h t he m et al roof deck being sloped and t he fiberglass roof deck panels m at ching t he sam e roof slope as t he m et al roof deck panels, t his creat ed a decept ion as being t he sam e st rengt h as t he m et al roof panels. Since t he skylight roof deck panels were vert ical or nearly vert ical, t he workers could not walk on t hem or even place heavy t ools or equipm ent weight s on t he skylight roof deck panels. So norm ally t he 19t h- Cent ury Saw- Toot h roof building design and const ruct ion would be safe for t he workers and not creat e a safet y hazard for t he roofing workers. ¦ I am very fam iliar wit h t hese t ypes of fact ory buildings and t heir 19t h- Cent ury Saw- Toot h roof - 13 - J- A01036- 14 designs t hroughout t he USA. I have perform ed m any different t ypes of st ruct ural engineering renovat ion proj ect s wit hin t hese t ypes of building st ruct ures t hroughout t he US. Based on m y past knowledge of t hese t ypes of buildings, I would est im at e t he subj ect building was designed and built as early as t he 1890s. I have observed t hat norm ally t hese t ypes of fact ory buildings wit h t heir 19t h- Cent ury Saw- Toot h roof designs would alm ost always have a nearly vert ical/ sloped part of t heir roof syst em t hat would int egrat e t his t ype of skylight clear roof panels and/ or skylight glass roof panels and/ or skylight fiberglass roof panels int o it s st andard m et al decking roof panels. I have not observed any sim ilar t ype of building design wit h it s roof m et al decking syst em t hat would allow/ perm it persons/ workers t o walk direct ly ont o t hese skylight t ypes of roof decking panels. I have observed t hat norm ally t hese t ypes of skylight panels were designed and/ or built above t he roof s norm al walking surface t o m ake it difficult t o walk on t hem ; so t hat an elevat ed/ sloped skylight surface would produce a possible warning and/ or a possible alert t o t he person/ worker of a possible safet y concern; if walking on t his skylight surface. I n fact , I have not seen/ observed in m y past 35 years as a st ruct ural engineer any sim ilar t ype of building roof design/ const ruct ion t hat int egrat ed sim ilar t ypes of skylight fiberglass roof decking panels int o it s roof syst em surface, which would allow/ perm it persons/ workers t o walk direct ly ont o t hese t ypes of skylight fiberglass roof decking panels. I d. at 17- 18. Upon Wright s review of a port ion of t his record, including deposit ion t est im ony t hat will be furt her discussed herein, he expressed a num ber of opinions regarding t he risks associat ed wit h Thiele s saw- t oot h roof and t he foreseeabilit y of t hese risks t o Thiele. Specifically, Wright opined as follows. - 14 - J- A01036- 14 6. I t is m y opinion t he int egrat ion of skylight fiberglass roof decking panels int o it s st andard m et al decking roof syst em did creat e a part icular risk and/ or unique risk and/ or unique t ype of roof safet y hazard and/ or [ ] unique safet y hazard of falling t hrough t he roof deck and not t he norm al roof hazard of falling off t he roof edges at t he t im e of t he accident . 7. I t is m y opinion due t o saw - t oot h const ruct ion and exist ence of fiberglass roof deck skylight s, t he risk of [ Appellant ] falling t hrough t he fiberglass skylight s was or should have been highly foreseeable t o [ ] Thiele and t hat a peculiar risk of physical harm t o ot hers, including [ Appellant ] , would occur unless special precaut ions were t aken such as fall arrest prot ect ion equipm ent being ut ilized. 8. I t is m y opinion t he work on unique t ype of fiberglass roof deck skylight s posed a peculiar risk of harm for which special precaut ions should have been t aken by [ ] Thiele but was not . ¦ 10. I t is m y opinion Thiele knew or should have known t hat it s plant facilit y m aint enance personnel, including Mr. Robert Spencer, were on t he subj ect roof and were required t o wear fall prot ect ion equipm ent , t o inst all anchorage locat ions for t heir fall prot ect ion syst em s and t o be connect ed t o t hese fall arrest prot ect ion anchorages when working around t he subj ect fiberglass roof deck skylight s prior t o t he t im e of t he accident ( Robert Spencer Dep., 17- 18, Oct ober 4, 2012) . ¦ 12. I t is m y opinion t he subj ect skylight fiberglass roof deck panel did creat e a peculiar risk and/ or unique risk and/ or unique roof safet y - 15 - J- A01036- 14 hazard of falling t hough t he fiberglass roof deck and not t he norm al roof safet y hazard of falling off t he roof edges at t he t im e of t he accident . ¦ 21. I t is m y opinion t he subj ect sloped roof was an old out dat ed saw- t oot h const ruct ion t hat int egrat ed fiberglass roof deck skylight s int o t he roof. This creat ed a unique fiberglass skylight safet y hazard which rendered t he circum st ances surrounding t he specific t ask especially dangerous. I d. at 5- 8. I n addit ion t o Wright s expert report , t he part ies deposed a num ber of individuals involved wit h t he Thiele roofing proj ect regarding t he special design of Thiele s saw- t oot h roof. Larry McCaulley, President of Am erican Roofing, t est ified, t here s very few [ saw- t oot h roofs] around. N.T., 10/ 4/ 12, at 8- 9, 33- 34. McCaulley st at ed t hat t hese t ypes of roofs are, old day - - - way old day roofs, and t here s - - - very seldom are we on a roof like t hat . I d. at 34. When asked if working on t his t ype of saw- t oot h roof creat es unusual working condit ions, McCaulley responded, [ y] eah, anyt hing out of t he ordinary creat es som e kind of problem . I d. at 34. When describing t he roof it self, Appellant t est ified t he roof was a hodgepodge of wood, m et al, shingle, rubber, skylight s, st eep, [ and] flat [ surfaces.] N.T., 2/ 18/ 10, at 34. Specifically, he t est ified as follows. I t s a lit t le bit of all of t hat . To m e it looked like it was a building t hat had a bunch of addit ions on it and different pit ches. There was som e st eep, som e - 16 - J- A01036- 14 flat , but it had all been - - looked like m aybe it was shingles underneat h. There was [ sic] different layers underneat h, but it had looked like at one t im e, it had gone over wit h a uniform m at erial. But it was different pit ches, valleys, dead valleys. Just it looked like som et hing t hat - - it j ust didn t - - looked like j ust a m aze alm ost , is what you could say. I d. at 34- 35. Appellant fell while working on a t ransit ion area of t he roof, where an 8/ 12 pit ch ran int o a 5/ 12 pit ch. I d. at 35. He t est ified t hat , as an experienced roofer, he did not consider t his pit ch t o be st eep. I d. at 33, 36. Appellant s t est im ony coincides wit h t he t est im ony of Joseph Rom ano, Jr., an owner of t he Thiele building, who m ade t he following com m ent s regarding t he st at e of t he building s roof and t he reasons for renovat ions. A: ¦ it was a very big roof, m ult iple roofs. Som e of it was shingled. Som e of it had rubber roofing on. Som e had j ust half lap paper on. ¦ A: The way t hey had done t he const ruct ion, t he original Thiele, was t hey t ied everyt hing t oget her. So you had m ult iple pit ched roofs wit h valleys. The valleys w ere always giving us t rouble. ¦ A: And t hen t hey had like a fiberglass skylight , like t he old m ills used t o do. ¦ A: Skylight - t ype m at erial. And we were t rying t o get rid of - - we were t rying t o lessen t hose [ skylight s] . They had t hem in big, long rows and t hen we st art ed t aking t hem out . We were t rying t o - 17 - t he J- A01036- 14 m ake it safer so you could walk up t here easier bet ween t he skylight s or service t he skylight s. So we t ook out t he long rows and we were put t ing in segm ent ed. So we d have m aybe t wo sheet s of plywood, one skylight , t wo sheet s of plywood, one skylight . N.T., 5/ 15/ 12, at 17- 19. Based upon t he foregoing, we conclude t hat a m at erial issue of fact exist s as t o whet her t he risk present ed by Thiele s saw- t oot h roof was different from t he ordinary and usual risk associat ed wit h [ repairing a roof.] Se e Gu t t e r idge , su pr a . Turning t o t he foreseeabilit y prong of t he peculiar risk t est , an owner and an em ployee of Thiele t est ified t hat t he risks present ed by it s saw- t oot h roof were apparent t o Thiele at t he t im e it cont ract ed wit h Am erican Roofing. Se e id. at 656. Rom ano t est ified t hat when he first purchased t he building he realized t here was som e bad sect ions of t he roof and t he roofer warned [ him ] about [ t hose sect ions] . N.T., 5/ 15/ 12, at 56. Addit ionally, Robert Spencer, who perform ed m aint enance for Thiele, t est ified t hat he would use safet y precaut ions, at t im es, while on t he roof perform ing spot repairs. N.T., 10/ 4/ 12, at 17. Q: [ D] uring t he t im e t hat [ Thiele] st art ed doing t he roof replacem ent sect ion by sect ion, were you st ill repairing or doing spot repairs on t he roof? A: Occasionally. Q: Okay. And when you went up t o do t he spot repairs on t he roof, did you have t o use any t ype of safet y harness, or safet y equipm ent or anyt hing when you went up t here? - 18 - J- A01036- 14 A: Occasionally it was [ i] n m y discret ion, if I had t o or not . Q: Okay. Okay. And t ell m e about t hat , when would you use som et hing, or when would you use and when would you not ? A: Usually if I was on t he m ain sect ion of t he roof away from t he skylight s and t hat , I would not - - - if I worked around t he sky lot s [ sic] , I - - - skylight s, I would usually t ie off. ¦ Q: Why would you t ie down in t he areas around t he skylight s? A: Just for safet y sake. I d. at 17- 19. 6 Based upon t he foregoing, we conclude t hat a m at erial issue of fact also exist s as t o t he foreseeabilit y of t he risk inherent in t his sawt oot h roof t o Thiele when it cont ract ed wit h Am erican Roofing. Se e Gut t e r idge , su pr a . 7 ____________________________________________ 6 Following Appellant s incident , Spencer also fell t hrough Thiele s roof. I d. at 39- 40. 7 Wit hin it s brief, Appellee cit es t o a num ber of cases in support of it s posit ion, which are readily dist inguishable and/ or non- precedent ial. Se e Edw a r ds v. Fr a n k lin & M a r sh a ll Colle ge , 663 A.2d 187 ( Pa. Super. 1995) ; Fe dor v. Va n - N ot e H a r ve y Assocs., 2011 U.S. Dist . LEXI S 28865 ( E.D. Pa. 2011) ; Szoj a k a v. D e n e n be r g, 1994 Phila. Ct y. Rprt . LEXI S 55 ( June 28, 1994) . Of not e, Appellee relies upon t his Court s decision in Edw a r ds, where we affirm ed t he t rial court s refusal t o apply t he peculiar risk doct rine t o a fall t hrough a t ransit e roof. Se e Edw a r ds, su pr a at 188. I n t hat case, t he inj ured worker claim ed t hat t he roof present ed a peculiar risk t o him based upon it s det eriorat ing condit ion and pot ent ial safet y code violat ions. On review, we agreed wit h t he t rial court t hat t he risk [ of ( Foot not e Cont inued Next Page) - 19 - J- A01036- 14 When viewing t he record in t he light m ost favorable t o Appellant and resolving all doubt s as t o t he exist ence of a genuine issue of m at erial fact against Thiele, we conclude t he t rial court im provident ly grant ed sum m ary j udgm ent in favor of Thiele. Se e Ba r n e s, su pr a . Upon our review of Appellant s expert report and t he deposit ion t est im ony present ed t o us, we believe evidence exist s t hat could allow a fact - finder t o render a verdict in favor of Appellant . Se e Ba bb, su pr a . Sufficient evidence of record exist s t o support Appellant s peculiar risk t heory t o perm it it t o be present ed t o t he fact - finder. Accordingly, we conclude t he t rial court abused it s discret ion when it grant ed sum m ary j udgm ent in favor of Thiele. Se e id. Furt herm ore, we conclude t hat t he t rial court erred as a m at t er of law when it grant ed Thiele s m ot ion for sum m ary j udgm ent . Pe t r in a , su pr a . I n grant ing t his m ot ion, t he t rial court st at ed as follows. Now, som et hing t hat caught m y at t ent ion in [ Appellant s] supplem ent al brief was t he st at em ent t o say t hat [ Appellant s expert wit ness] indicat es ( Foot not e Cont inued) _______________________ st epping t hrough t his roof] was not different from t he usual and ordinary risks associat ed wit h t he general t ype of [ renovat ion] work being done. I d. at 191. The fact s of t he present case are dist inguishable from Edw a r ds. I n t he inst ant m at t er, Appellant s peculiar risk claim is based upon t he unique and rare 19 t h - cent ury saw- t oot h design of Thiele s roof, not it s det eriorat ing condit ion. Se e Appellant s Brief at 20. Moreover, Appellant obt ained an expert report st at ing t hat t he design of Thiele s roof, specifically t he int egrat ion of skylight fiberglass roof decking panels int o t he st andard m et al decking roof syst em , creat ed an ext raordinary risk for an individual working on t he roof t o fall t hrough it . Supplem ent al Brief in Opposit ion t o Mot ion for Sum m ary Judgm ent , 2/ 22/ 13, Ex. 7. - 20 - J- A01036- 14 t hat it is clearly foreseeable t hat by not using fall prot ect ion equipm ent t his incident was likely t o happen. To m e, t hat t akes it right out of t he peculiar risk doct rine if it s clearly foreseeable. [ Am erican Roofing] is a com pany t hat s been doing roofing work for 25 years. [ I t has] been on t his part icular roof before. I t s cle a r ly for e se e a ble t h a t t h is da n ge r e x ist s. ¦ I n m y opinion, t he r isk w a s a ppa r e nt . [ Am erican Roofing] had been on t his roof before. Whet her [ it ] did or did not use safet y equipm ent before, m aybe [ it ] felt t hat [ it ] had a good experience wit h t he roof and [ it ] didn t need safet y equipm ent . That was a bad j udgm ent obviously in hindsight , but suffice it t o say t here was not hing surprising about t his roof. I t was a pit ch roof. [ Am erican Roofing] knew t he risks of working on roofs, t hat people fall off of roofs. This does not st rike m e as being a peculiar risk. N.T., 2/ 25/ 13, at 18- 19 ( em phasis added) . Thus, t he t rial court found t hat a I d. This conclusion explicit ly cont ravenes t he t est set fort h in Gu t t e r idge . Se e peculiar risk did not exist be ca u se t he risk was foreseeable. Gut t e r idge , su pr a at 656. Therefore, we conclude t he t rial court erred as a m at t er of law when it grant ed sum m ary j udgm ent on t his ground. Se e Pe t r in a , su pr a . Based on t he foregoing, we conclude t he t rial court abused it s discret ion and com m it t ed an error of law when it grant ed Thiele s m ot ion for sum m ary j udgm ent . Se e Pe t r ina , su pr a at 797- 798. Accordingly, t he t rial court s February 28, 2013 order is reversed, t he March 21, 2013 j udgm ent is - 21 - J- A01036- 14 vacat ed, and t he case is rem anded for furt her proceedings consist ent wit h t his m em orandum . Order reversed. Judgm ent vacat ed. relinquished. P.J.E. Bender Not es Dissent . Judgm ent Ent ered. Joseph D. Selet yn, Esq. Prot honot ary Dat e: 2/ 7/ 2014 - 22 - Case rem anded. Jurisdict ion

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