The Justices of the Supreme Court of Pennsylvania Disagree as to What Section 385 of the Restatement (Second) of Torts Means

June 16, 2023

By: William L. Hallam

The American Law Institute, a group of prominent judges, lawyers, and professors, publishes the Restatements of the Law.  According to Brooklyn Law School, “The drafting process of the Restatements is painstaking and can take anywhere from 9-21 years.” With such an august group of authors putting so much time and effort into the finished product, one would think that the meaning of each section of the Restatements would be crystal clear. Yet, in a recent decision of the Supreme Court of Pennsylvania, five justices concluded that Section 385 of the Restatement (Second) of Torts dictated one outcome while a sixth justice disagreed in a vigorous dissenting opinion.

The facts in Brown v. City of Oil City were that the City of Oil City (the “City”) hired Harold Best Struxures, LLC (the “Contractor”) to plan and oversee the reconstruction of deteriorating steps to the public library. Not long after the Contractor completed the work, the City became aware that the concrete used to reconstruct the steps had imperfections and that the steps were degrading. As a result, the City notified the Contractor that the steps were defective and dangerous as a result of the Contractor’s shoddy work. However, neither the City nor the Contractor did anything to address the defects.

Predictably and tragically, a library patron tripped on the defective steps, hit her head, and died as a result. Her husband, on behalf of her estate, sued the City and the Contractor.

The Contractor moved for summary judgment.  The Contractor contended that, under Section 385 of the Restatement, it was not liable because it was not in possession of the library when the fall occurred and the City, the party in possession, knew of the defects in the steps.  Section 385, entitled “Persons Creating Artificial Conditions on Land on Behalf of Possessor: Physical Harm Caused After Work has been Accepted,” provides:

One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as  manufacturer or independent contractor makes a chattel for the use of others.

Comment c. to Section 385 provides:

As the liability of a servant or an independent contractor who erects a structure upon land or otherwise changes its physical condition is determined by the same rules as those which determine the liability of a manufacturer of a chattel, it follows that such a servant or contractor who turns over the land with knowledge that his work has made it dangerous in a manner unlikely to be discovered by the possessor is subject to liability both to the possessor, and to those who come upon the land with the consent of the possessor or who are likely to be in its vicinity.

The description in Comment c. of the conditions under which a manufacturer of a chattel is liable is derived from Section 388 of the Restatement (Second) of Torts. That Section provides:

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

The trial court agreed with the Contractor and granted its motion for summary judgment. In the opinion of the trial court, since Comment c. says that a contractor is liable if it made property dangerous “in a manner unlikely to be discovered by the possessor” and Section 388 says that a supplier of a chattel is liable if it “has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition,” the City’s awareness of the defects in the steps before the fall occurred insulated the Contractor from liability.

After the decedent’s husband reached a settlement with the City, he appealed the summary judgment awarded to the Contractor to Superior Court, which reversed the trial court’s decision. The Contractor appealed to the Supreme Court which affirmed the Superior Court’s decision.

In the majority opinion, the Supreme Court noted that nothing in Section 385 itself suggests likelihood of discovery of the dangerous condition matters. The language regarding likelihood of discovery is found only in Comment c.  Moreover, the majority noted that Comment c. “does not exist in a vacuum” and that Section 385 “must be read consistent with the text and underlying purposes for which Section 385 was adopted.”

Part of the text considered by the majority was Section 388. Although that Section does say that a supplier of chattels is liable if, among other things, the supplier “has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition,” the majority said “We see nothing in the plain text of these provisions which exempts an out-of-possession contractor from liability when it makes a repair to a chattel that it reasonably should foresee would render it dangerous to a third party who uses it, even when its dangerous condition is obvious.” In the view of the majority, Section 388 imposes a duty on the supplier to notify users of latent defects, but “does not address a contractor’s liability for [obvious] defects.”

In dissent, Justice Mundy said that the majority’s interpretation of Section 388 was “strained in terms of plain meaning” because it treated Section 388(b)’s “no reason to believe” “not as one of a list of three preconditions for liability, but as a factor, if present after potential liability has been established by negligence and knowledge, that trigger the additional duty to warn.” Moreover, Justice Mundy noted that the majority’s interpretation of Section 385 produced the antithetical result of making a contractor liable when the property owner is not. Under Pennsylvania law, a property owner is not liable to an invitee “if it is reasonable for the [property owner] to believe that the dangerous condition would be obvious to and discovered by his invitee.”

Maybe if the judges, lawyers, and professors of the American Law Institute had just put another decade or so into the Restatement drafting process, they could have convinced all of the Justices of the Supreme Court of Pennsylvania to conclude that Section 385 means the same thing.