In Rabovsky v. Foster Wheeler, LLC, a case recently decided by the United States District Court for the Eastern District of Pennsylvania, the plaintiff, Rabovsky, alleged that while working as an independent contractor at an industrial plant Doe Run Resources Corporation in Monaca, Pennsylvania, when he was exposed to asbestos. He alleged he developed mesothelioma as a result of that exposure. Doe Run Resources Corporation sought dismissal by way of motion for summary judgment, claiming no legal duty as the plaintiff had been retained to work at the facility as an independent contractor.

      The District Court began its analysis with the duty owed to business invitees by property owners. Under Pennsylvania law, the duty owed by a possessor of land to someone entering the land depends on whether the person is a trespasser, licensee, or invitee. The District Court noted that employees of an independent contractor, such as Rabovsky, are “invitees” who fall within the classification of “business visitors.”

      Pennsylvania law generally insulates property owners from liability for the negligence of independent contractors since property owners are, in many instances, not in control of the workplace where the work is being performed, lack the expertise to perform the work, and are not in the best position to protect the independent contractor from injury. However, the District Court noted that even in cases involving independent contractors, landowner still have a duty to warn an unknowing independent contractor of existing dangerous conditions of which the property owner is aware. The duty exists irrespective of whether the independent contractor exercises full control over the work, so long as the dangerous condition is not obvious to the independent contractor.

      The focus of the District’s Court’s decision was on the equal or superior knowledge of the property owner. The District Court found that in those instances where the property owner has superior knowledge over the independent contractor of a dangerous or defective condition, the property owner has the duty to warn against the dangerous or defective condition.

      Applying the legal framework to the facts in Rabovsky, the District Court determined that that the plaintiff was unaware of asbestos hazards onsite. While the defendant contended that the plaintiff’s employer, the company/independent contractor which had been hired to perform the work, had expertise regarding asbestos and the hazards related thereto, the District Court noted that the defendant failed to present evidence that the contractor was aware of asbestos at this particular facility. The summary judgment was denied on the basis that the property owner had superior knowledge which it failed to impart upon the independent contractor traveling on to the land to perform services.

What It Means to You

This case presents a new avenue of attack against property owners who retain independent contractors. In defending these claims, every effort should be made to document the reason why the independent contractor was retained; what information was provided to the independent contractor; and what training the independent contractor had regarding that particular type of hazard before stepping onto the site.