Warnick brought suit against “The Home Depot U.S.A., Inc. 1

(Headquarters)” and “The Home Depot U.S.A., Inc. (Branch).” 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS WARNICK and :

MAUREEN WARNICK, : CIVIL ACTION

:

Plaintiffs, : NO. 05-2529

:

v. :

:

THE HOME DEPOT U.S.A., INC., :

et al., :

:

Defendants. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. MAY 10, 2007

Plaintiff Thomas Warnick brings this negligence action

against Home Depot, U.S.A., Inc. and IBM Corp. for injuries

Warnick sustained when he fell through a ceiling at a Home Depot

store while installing computer network cables for an IBM

subcontractor. Home Depot and IBM cross-claimed against each

other, and both now move for summary judgment against Warnick and

each other.

I. BACKGROUND

A. Procedural Background

On May 6, 2005, Warnick filed suit against Home Depot in 1

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 1 of 40
According to Home Depot, “Home Depot U.S.A., Inc.” is the proper

defendant, because the company’s corporate structure is not

legally separated between its headquarters and branch stores.

2

the Philadelphia County Court of Common Pleas. On May 27, 2005,

Home Depot removed the case to this Court, on the basis of

diversity jurisdiction. On August 9, 2005, Warnick filed an

amended complaint, adding IBM as a defendant and adding a count

on behalf of his wife, Maureen Warnick, for loss of consortium. 

IBM and Home Depot then cross-claimed against each other. 

Plaintiffs’ pending counts are Count I (Thomas Warnick v.

Home Depot for negligence), Count II (Thomas Warnick v. IBM for

negligence), and Count IV (Maureen Warnick v. Home Depot and IBM

for loss of consortium). 

IBM asserts one count against Home Depot, for contribution

if judgment is entered against it.

Home Depot asserts three counts against IBM. Count I is for

contribution if judgment is entered against it, Count II is for

breach of contract for IBM’s failure to defend Home Depot in this

litigation pursuant to their contract, and Count III is for

breach of contract for IBM’s failure to adequately perform its

duties under their contract.

B. Factual Background

The facts are actually quite simple, and for purposes of

these motions they are largely undisputed. Home Depot and IBM

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 2 of 40
 The parties’ filings often misspell this name as 2

“Datatech.” Presumably, Warnick did not bring a negligence claim

against Datatec because Datatec, as Warnick’s employer, is

protected by Pennsylvania’s Workers’ Compensation Act, 77 Pa.

Cons. Stat. §§ 1 et seq. See Farabaugh v. Pa. Turnpike Comm’n,

911 A.2d 1264, 1266 n.1 (Pa. 2006).

3

entered into a contract whereby IBM would provide computer

installation, wiring, and networking products and services at

several Home Depot stores, including the store in question in

Landsdale, Pennsylvania. IBM subcontracted some of its

installation work to Datatec Systems, Inc. Warnick was employed

as an electrician by Datatec.2

On September 14, 2003, Warnick was installing computer

network cables at the Home Depot store. He was pulling cable

through the ceiling of an office area while walking on a wooden

plank in the ceiling. He fell approximately fourteen feet,

causing severe and permanent injuries. He is no longer able to

perform the duties he was performing at Datatec.

Warnick alleges, in short, that his fall was due to Home

Depot’s and/or IBM’s negligence. He contends that Defendants

exercised approval and control over his performance of the work,

that they failed to provide a safe work environment, and that

they created a dangerous condition.

II. DISCUSSION

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 3 of 40
 Home Depot moved for summary judgment against Warnick and 3

IBM (doc. no. 29). IBM responded (doc. no. 31); Warnick

responded (doc. no. 37). 

IBM moved for summary judgment against Warnick (doc. no.

32). Warnick responded (doc. no. 38). 

IBM’s response to Home Depot’s motion for summary judgment,

while not technically a motion for summary judgment, will be

treated as one. Indeed, IBM asks for “judgment in its favor.” 

Therefore, the Court will treat the dispute between Home Depot

and IBM as cross-motions for summary judgment. See 10A Wright &

Miller, Federal Practice & Procedure § 2270 (“The weight of

authority . . . is that summary judgment may be rendered in favor

of the opposing party even though the opponent has made no formal

cross-motion under Rule 56. . . . [T]he practice of allowing

summary judgment to be entered for the nonmoving party in the

absence of a formal cross-motion is appropriate.”).

4

A. Summary Judgment Standard3

A court may grant summary judgment when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A fact is “material” if its existence or non-existence

would affect the outcome of the suit under governing law. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An

issue of fact is “genuine” when there is sufficient evidence from

which a reasonable jury could find in favor of the non-moving

party regarding the existence of that fact. Id. at 248-49. “In

considering the evidence, the court should draw all reasonable

inferences against the moving party.” El v. Se. Pa. Transp.

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 4 of 40
 In this diversity action, Warnick’s negligence claims are 4

governed by Pennsylvania law.

5

Auth., 479 F.3d 232, 238 (3d Cir. 2007). “[S]ummary judgment is

essentially ‘put up or shut up’ time for the non-moving party:

the non-moving party must rebut the motion with facts in the

record and cannot rest solely on assertions made in the

pleadings, legal memoranda, or oral argument.” Berckeley Inv.

Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).

B. Application of the Summary Judgment Standard

1. The negligence claims against Home Depot and IBM

Under Pennsylvania law, a claim for negligence requires 4

four elements: 

(1) a duty or obligation recognized by the law,

requiring the actor to conform to a certain standard of

conduct for the protection of others against

unreasonable risks; (2) a failure to conform to the

standard required; (3) a causal connection between the

conduct and the resulting injury; and (4) actual loss

or damage resulting in harm to the interests of

another.

Nw. Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 139 (3d Cir.

2005) (applying Pennsylvania law). In other words, a plaintiff

must show the usual (1) duty, (2) breach, (3) causation, and (4)

damages. See Farabaugh v. Pa. Turnpike Comm’n, 911 A.2d 1264,

1272-73 (Pa. 2006). “Whether a defendant owes a duty to a

plaintiff is a question of law.” In re TMI, 67 F.3d 1103, 1117

(3d Cir. 1995).

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 5 of 40
 The Pennsylvania Supreme Court’s recent decision in 5

Farabaugh v. Pennsylvania Turnpike Commission, 911 A.2d 1264,

1270 (Pa. 2006), presents a helpful guide for analyzing a

contractor’s employee’s negligence action against the landowner

under the relevant Restatement (Second) of Torts sections.

6

Warnick has two potential bases of liability against Home

Depot and one against IBM. As to Home Depot, Warnick argues that

Home Depot, as a landowner, owes a duty to those who perform work

on its premises. As to both Home Depot and IBM, Warnick argues

that, as parties who hired contractors for the performance of

certain work, they owe a duty to the employees of those

contractors.

Home Depot did not, under either theory, owe Warnick any

duty. Home Depot is therefore entitled to summary judgment on

Warnick’s negligence claim against it. 

Likewise, IBM did not owe Warnick a duty. IBM is therefore

entitled to summary judgment on Warnick’s negligence claim

against it.

a. Warnick’s negligence claim against Home

Depot 

First, Warnick argues that Home Depot owed Warnick a duty

because of Home Depot’s position as a landowner. The general 5

rule is that a possessor of land owes a duty to business

invitees, such as employees of independent contractors, where a

non-obvious dangerous condition exists on the possessor’s land. 

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 6 of 40
7

See Restatement (Second) of Torts § 343 (Dangerous Conditions

Known or Discoverable By Possessor). For the duty to attach, the

condition must be non-obvious. In addition, there is no duty if

the contractor is in the same position as the landowner to

discover the dangerous condition or if the contractor is the

party that created the dangerous condition in the first place.

The second asserted duty is premised on Home Depot’s alleged

liability as a party who contracts for certain work to be

performed. Under the general rule, a hiring party is not liable

for the injuries of an independent contractor’s employees. 

However, there are two exceptions to this rule. The first

exception is for “retained control”: the hiring party owes a duty

to the contractor’s employees if the hiring party retains control

over the means and methods of the contractor’s work. See

Restatement (Second) of Torts § 414 (Negligence in Exercising

Control Retained By Employer). The second exception is for

“peculiar risks”: a hiring party owes a duty to the contractor’s

employees if the work being performed poses a special danger or

is particularly risky. See Restatement (Second) of Torts § 416

(Work Dangerous in the Absence of Special Precautions) and § 427

(Negligence as to Danger Inherent in the Work).

I. Duty as landowner (Section 343)

The parties agree that Warnick was a business invitee on

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8

Home Depot’s premises. See Gutteridge v. A.P. Green Servs.,

Inc., 804 A.2d 643, 655 (Pa. Super. Ct. 2002) (“Employees of

independent contractors . . . are ‘invitees’ who fall within the

classification of ‘business visitors.’”). Pennsylvania has

adopted the Restatement (Second) of Torts § 343’s standard for

when a landowner owes (and breaches) its duty to an invitee:

A possessor of land is subject to liability for

physical harm caused to his invitees by a condition on

the land if, but only if, he

(a) knows or by the exercise of reasonable care would

discover the condition, and should realize that it

involves an unreasonable risk of harm to such invitees,

and

(b) should expect that they will not discover or

realize the danger, or will fail to protect themselves

against it, and

(c) fails to exercise reasonable care to protect them

against the danger.

Restatement (Second) of Torts § 343; see Carrender v. Fitterer,

469 A.2d 120, 123 (Pa. 1983) (adopting Restatement (Second) of

Torts § 343). This is a narrow theory of liability:

Pennsylvania law imposes no general duty on property

owners to prepare and maintain a safe building for the

benefit of a contractor’s employees who are working on

that building. Rather, our law generally insulates

property owners from liability for the negligence of

independent contractors and places responsibility for

the protection of the contractor’s employees on the

contractor and the employees themselves.

Gutteridge, 804 A.2d at 656 (citing Mentzer v. Ognibene, 597 A.2d

604, 608-09 (Pa. Super. Ct. 1991)). 

The landowner does not owe a duty to the contractor’s

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 8 of 40
9

employee if the defective conditions of the land are the products

of the contractor’s work. Farabaugh, 911 A.2d at 1273 (quoting

Crane v. I.T.E. Circuit Breaker Co., 278 A.2d 362, 364 (Pa.

1971). In addition, the landowner “has no duty to warn the

contractor or his employees of a condition that is at least as

obvious to [the contractor and his employees] as it is to [the

landowner].” Colloi v. Phila. Elec. Co., 481 A.2d 616, 620 (Pa.

Super. Ct. 1984) (citing Repyneck v. Tarantino, 202 A.2d 105 (Pa.

1964)). 

Here, Warnick argues that there is a dispute as to who

actually placed the board on top of the office. But this issue

of fact is not “genuine.” Whether the board placed on the

ceiling high above the ground was placed by Home Depot or Datatec

(or another party), this dangerous condition of land was at least

as obvious to Warnick and Datatec as it was to Home Depot. 

Indeed, Andrew Orr, Datatec’s foreman on the job, testified that

he saw the board on the ceiling above the office before Warnick

walked on it (although Orr first saw the board the night of the

accident). Doc. No. 29, Ex. L, Andrew Orr depo., at 83. Warnick

testified that he saw a co-worker, Al Bauer, put at least one

foot on the board. Doc. No. 29, Ex. K, Plaintiff depo., at 70-

73. And Bauer testified that he had used the board earlier that

night or the previous night. Doc. No. 29, Ex. N, at 17. 

Finally, Section 343 applies only to “non-obvious” conditions; an

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 9 of 40
10

unsecured board resting high above the ground is obvious. 

Therefore, Home Depot had no duty to warn Warnick of the board’s

dangerousness; Datatec and/or Warnick knew or should have known

of the condition themselves. 

Therefore, Home Depot did not owe Warnick the duty to warn

of non-obvious dangerous conditions that a landowner

traditionally owes a business invitee. 

ii. Duty as employer of contractor

(Sections 414, 416, and 427) 

The general rule is that a party that hires a general

contractor is exempt from liability for injuries sustained by the

contractor’s employees. Farabaugh, 911 A.2d at 1273; see also

Restatement (Second) of Torts § 409 (“[T]he employer of an

independent contractor is not liable for physical harm caused to

another by an act or omission of the contractor or his

servants.”). 

An owner of land who delivers temporary possession of a

portion of the land to an independent contractor owes

no duty to the employees of the independent contractor

with respect to an obviously dangerous condition on

that portion of the land in the possession of the

contractor. 

Hader v. Coplay Cement Mfg. Co., 189 A.2d 271, 277 (Pa. 1963).

The two relevant exceptions to this rule are (1) if the hiring

party exercised “control over the means and methods of the

contractor’s work” and (2) if the work being performed poses a

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 10 of 40
11

special danger or is particularly risky. Farabaugh, 911 A.2d at

1273, 1276. 

(1) The “retained control”

exception 

The “retained control” exception applies if the hiring party

retains control over the methods and means of the contractor’s

work. See Restatement (Second) of Torts § 414 (imposing a duty

of reasonable care to a contractor’s employees on “[o]ne who

entrusts work to an independent contractor, but who retains the

control of any part of the work”). The contours of the exception

are explained in the comment to the Restatement:

In order for the [“retained control” exception] to

apply, the employer must have retained at least some

degree of control over the manner in which the work is

done. It is not enough that he has merely a general

right to order the work stopped or resumed, to inspect

its progress or to receive reports, to make suggestions

or recommendations which need not necessarily be

followed, or to prescribe alterations and deviations. 

Such a general right is usually reserved to employers,

but it does not mean that the contractor is controlled

as to his methods of work, or as to operative detail. 

There must be such a retention of a right of

supervision that the contractor is not entirely free to

do the work in his own way.

Restatement (Second) of Torts § 414, cmt. c; see also LaChance v.

Michael Baker Corp., 869 A.2d 1054, 1058-59 (Pa. Commw. Ct. 2005)

(discussing the comment). There is no question here that Home

Depot had no involvement in how Datatec (the contractor and

Warnick’s employer) performed its work.

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12

A long line of Pennsylvania cases has construed this

exception narrowly, almost always finding that the hiring party

did not exercise sufficient control over the contractor to impose

liability on the hiring party for the contractor’s employee’s

injury. In Hader, although the hiring party’s plant manager and

vice president frequently visited the construction site, they did

not give “any instructions as to the manner of installation” of

the machinery at issue, and therefore “their presence was

completely innocuous.” 189 A.2d at 278. In Emery v. Leavesly

McCollum, although the hiring party employed a “site manager” to

monitor the contractor’s work, he merely “acted as a liaison

between the owner and the contractor. His responsibility was to

make sure that the contractor was complying with the contract.” 

725 A.2d 807, 813-14 (Pa. Super. Ct. 1999). And in Farabaugh,

the court again found the “retained control” exception

inapplicable, even though the hiring party required the

contractor’s employees to watch a safety video, included safety

provisions in its contract with the contractor, and hired a

separate contractor “specifically to supervise safety issues.” 

911 A.2d at 1275. 

The Pennsylvania Commonwealth Court’s opinion in LaChance

provides a good example. The landowner hired a contractor to

improve a portion of a state road. 869 A.2d at 1055. The

project entailed, inter alia, laying large underground pipes. 

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 12 of 40
13

Id. While the plaintiff, an employee of the contractor’s, was

grouting the inside of a pipe, the trench surrounding the pipe

collapsed, and the employee was killed. Id. The employee argued

that the owner was liable under the “retained control” exception,

both because of certain contract provisions and the owner’s

course of conduct. Id. at 1057. The court rejected both

arguments. Id. at 1062. Certain contract provisions discussing

the owner’s rights and duties did not make the owner liable:

“[The owner’s] inspection rights, exercised to assure itself that

[the contractor] performed its work safely, as [the contractor]

had agreed in its contract, did not make [the owner] the

guarantor of the safety of [the contractor’s] employees. . . .

[The contractor’s] contract performance had to meet [the owner’s]

contract specifications, but [the contractor] controlled the

manner of performance. This is how contractual relationships

work.” Id. at 1060-61. The court also held that the owner’s

actual conduct did not evidence its control. Id. at 1062. The

owner’s field inspector allegedly directed the contractor’s

employees to grout outside of the pipe in question instead of

inside the pipe. Id. at 1061. The court held that simply

directing an employee to undertake a discrete activity did not

rise to the level of retention of control over the

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 The court also seemed to base its decision on the fact 6

that the owner’s directive to the contractor’s employee to grout

the outside of the pipe did not cause the accident; the accident

was caused by the “digging, benching, bracing or shoring” of the

trench, over which the contractor had complete responsibility and

absolute discretion. Id. at 1062. 

14

subcontractor’s work. Id. at 1062. Therefore, the owner did 6

not “retain control” over the worksite sufficient to impose

liability; the contractor was both contractually responsible for

the safety of its employees and actually responsible for the

accident that caused the plaintiff’s death.

Warnick attempts to support his argument with Byrd v.

Merwin, 317 A.2d 280 (Pa. 1974), but Byrd is factually

distinguishable. In Byrd, a subcontractor’s employee was injured

when a prefabricated staircase fell on his leg, and he brought an

action against the landowner. Id. at 281. The owner, not the

general contractor, had hired and paid the subcontractors. Id.

at 282. In addition, the owner had instructed the subcontractor

when and where to work. Id. Finally, the general contractor

himself testified that the owner, not the general contractor, was

in control of the project. Id.

Warnick argues that the actions of Mark Brosious, Home

Depot’s assistant manager, evidence that Home Depot retained

control of the Datatec worker’s safety. Brosious testified that

he would tell Datatec employees to stop engaging in certain

activities if Brosious thought they were unsafe. See Doc. No.

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 14 of 40
 The “superior knowledge doctrine” (Section 416) and the 7

“peculiar risk doctrine” (Section 427) are “basically

interchangeable and overlapping concepts.” Lorah v. Luppold

Roofing Co., Inc., 622 A.2d 1383, 1385 n.1 (Pa. Super. Ct. 1993).

15

37, Ex. G, at 73-74 (Brosious Depo.: “If people or contractors

were in racks, were standing in racks or on top of pallets, I

would request that, you know, they would come down or have us

move the pallets that they needed removed.”). Even if Brosious

did “instruct” Datatec employees on safety issues, as Warnick

alleges, such instruction is insufficient to meet the “retained

control” exception. The owner’s safety-related actions in

Farabaugh--requiring the contractor’s employees to watch a safety

video and hiring a separate contractor “specifically to supervise

safety issues,” 911 A.2d at 1275--are more pervasive than here,

and yet the court in Farabaugh concluded that the owner did not

“retain control” over the contractor’s employees’ work. Warnick

has not alleged that Home Depot instructed Datatec employees on

how to install the network cables or to walk on boards in the

ceiling in the course of their work. Therefore, Home Depot did

not “retain control” over the methods of Datatec’s and Warnick’s

work. 

(2) The “peculiar risk” 

exception 

The “peculiar risk” exception applies if the work to be 7

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16

done by the independent contractor involves a special or peculiar

risk. A special danger or peculiar risk exists where (1) “the

risk is foreseeable to the owner at the time the contract is

executed” and (2) “the risk is different from the usual and

ordinary risk associated with the general type of work done.” 

Farabaugh, 911 A.2d at 1277 (quoting Emery, 725 A.2d at 814). 

“All construction work involves a risk of some harm; only where

the work is done under unusually dangerous circumstances does it

involve a ‘special danger’ or ‘peculiar risk.’” Ortiz v. Ra-El

Dev. Corp., 528 A.2d 1355, 1359 (Pa. Super. Ct. 1987). “In order

for the liability concepts involving contractors to retain any

meaning, especially in industries such as construction where

almost every job task involves the potential for injury unless

ordinary care is exercised, peculiar risk situations should be

viewed narrowly, as any other exception to a general rule is

usually viewed.” Marshall v. Se. Pa. Transp. Auth., 587 F. Supp.

258, 264 (E.D. Pa. 1984). 

In most of the cases in which the plaintiff unavailingly

points to the “peculiar risk” doctrine, the employee was

performing routine construction work without the proper safety

precautions when he injured himself. Courts have declined to

apply the doctrine to this factual scenario; for the doctrine to

apply, the employee must have been performing work that entailed

risks different from the ordinary risks associated with the

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 16 of 40
17

employee’s usual work. Violations of safety conditions--whether

by the employee or his employer, the contractor--are not a basis

for invoking the doctrine. Lorah v. Luppold Roofing Co., Inc.,

622 A.2d 1383, 1386 (Pa. Super. Ct. 1993).

For instance, in Lorah, the employee was walking down a

ladder when the ladder moved off the wall. Id. Walking down a

ladder into a construction pit while carrying about twenty-five

pounds of rebars was not itself a “peculiar risk”; rather, the

worker’s (or his employer’s) failure to properly secure the

ladder was what created the risk. Id. “What made the activity

of increased risk was not the activity itself, which is normally

of minimal risk, but the failure of the independent contractor

(and/or his servants) to take adequate precautions.” Id. In

other words, the activity itself must be of increased risk; the

manner in which the worker engages in that activity is not

relevant. 

Here, the work that Warnick was performing was not

particularly risky; he was installing computer network cables. 

The manner in which he was installing the cables, walking on

boards in the ceiling and swinging the cables through, was not

itself particularly risky. What made the endeavor risky was

Warnick’s failure to secure himself with a lanyard and/or

Datatec’s failure to properly secure the boards upon which

Warnick was walking. In short, the activity would not have been

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 17 of 40
18

risky had Warnick and Datatec--the parties most able to provide

for Warnick’s safety--properly provided for Warnick’s safety

while installing in the cables.

Therefore, the “peculiar risk” doctrine does not apply. 

iii. Conclusion: Home Depot owed no 

duty to Warnick 

The general rule is that Home Depot, the landowner and

hiring party, is not liable for the injuries of its contractors’

employees. As a landowner, Home Depot owed no duty to Warnick

because Datatec was at least as aware of the dangerous condition

as was Home Depot. As the hiring party, Home Depot owed no duty

to Warnick because Home Depot did not “retain control” of the

means of Warnick’s work and the work to be done was not of a

particularly risky nature. Therefore, there is no genuine issue

of material fact as to whether Home Depot was at least aware of

the condition as was Datatec; as to whether Home Depot “retained

control” over the worksite; or as to whether the job Warnick was

performing was particularly risky. As a matter of law, Home

Depot did not owe Warnick a duty. Home Depot is entitled to

summary judgment on Warnick’s negligence claim.

b. Warnick’s negligence claim against IBM

As noted above, the general rule is that the party that

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 18 of 40
 Curiously, Leonard did not explicitly cite Restatement 8

(Second) of Torts § 414, even though the factual scenario in

Leonard--a subcontractor’s injured employee suing the general

contractor--is explicitly discussed in Section 414 and the

comments thereto. Nevertheless, Leonard and Hader v. Coplay

Cement Mfg. Co., 189 A.2d 271 (Pa. 1963), stand in the same line

of cases, and Hader’s progeny (Hader was decided in 1963, while

19

hires an independent contractor is not liable for injuries of the

contractor’s employees. See Restatement (Second) of Torts § 409

(“[T]he employer of an independent contractor is not liable for

physical harm caused to another by an act or omission of the

contractor or his servants.”). Therefore, the starting

proposition is that IBM, as the general contractor on the

project, did not owe a duty to employees of Datatec, the

subcontractor. However, as with Home Depot, IBM can be liable

for Warnick’s injuries if IBM can be said to have “retained

control” over the means and methods of Datatec’s work. See

Restatement (Second) of Torts § 414 (“One who entrusts work to an

independent contractor, but who retains the control of any part

of the work, is subject to liability for physical harm to others

for whose safety the employer owes a duty to exercise reasonable

care, which is caused by his failure to exercise his control with

reasonable care.”). Thus, the question is whether IBM “retained

control” of any part of the work it delegated to Datatec. 

In Leonard v. Commonwealth, 771 A.2d 1238 (Pa. 2001), the

Pennsylvania Supreme Court analyzed a general contractor’s

liability when it has delegated work to a subcontractor. In 8

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 19 of 40
the Restatement (Second) of Torts was promulgated in 1965)

explicitly incorporate Section 414. See, e.g., Celender v.

Allegheny County Sanitary Auth., 222 A.2d 461, 463-64 (Pa. Super.

Ct. 1966) (discussing Hader in connection with Section 414). As

the Farabaugh court put it, “[t]hese cases consider whether and

to what extent the owner [see Hader] or general contractor [see

Leonard] has delegated responsibility for the work on the

property to a subcontractor.” 911 A.2d at 1281. There is thus

no appreciable difference in the “retained control” analysis

between a subcontractor’s employee’s negligence action against a

landowner and one against a general contractor.

20

Leonard, PennDOT entered into a contract with Kiewitt/Perini, a

general contractor, to improve a portion of an interstate highway

by, inter alia, demolishing and rebuilding certain bridges. Id.

at 1239. Kiewitt/Perini entered into a contract with High Steel,

a subcontractor, to fabricate and erect steel for the bridges. 

Id. High Steel, in turn, entered into a contract with Cornell, a

sub-subcontractor, to erect the steel. Id. Leonard, the

plaintiff, was an employee of Cornell’s. Id. Leonard, who was

wearing a safety belt that was not attached to any safety device,

fell about forty feet, sustaining serious injuries. Id. 

The court first noted the “established law” that “a

contractor is not liable for injuries resulting from work

entrusted to a subcontractor.” Id. at 1240. An injured worker

can recover only from that subcontractor that was directly in

control of the worker’s pursuit. Id. Pennsylvania has adopted

Restatement (Second) of Torts § 384, comment d:

A possessor of land may put a number of persons

severally in charge of the particular portions of the

work of erecting a structure or creating any other

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 20 of 40
21

condition upon the land. Again, a general contractor

employed to do the whole of the work may, by the

authority of his employer, sublet particular parts of

the work to subcontractors. In such a case, the rule

stated in this Section applies to subject the

particular contractor or subcontractor to liability for

only such harm as is done by the particular work

entrusted to him. . . . 

Restatement (Second) of Torts § 384, cmt. d (emphasis added).

Under this formulation, only Cornell, Leonard’s direct

employer, would be liable for Leonard’s injuries. 771 A.2d at

1241. The court rejected Leonard’s attempt to impose liability

on Kiewitt/Perini (the general contractor) or High Steel (the

subcontractor) for their alleged failure to comply with

applicable Occupational Safety and Health Administration (OSHA)

regulations governing site safety. Id. at 1241. “The fact that

OSHA requirements were applicable to the project does not . . .

mean that Kiewit/Perini or High Steel had a presence at the site

or control over the work done by Cornell. Absent those elements,

liability does not attach.” Id.

The court also rejected Leonard’s attempt to impose

liability on Kiewitt/Perini or High Steel based on certain

language in the contract between them and between Kiewitt/Perini

and PennDOT. Id. at 1242. The court held that Cornell’s

contract to erect the steel assumed all of Kiewitt/Perini’s

and/or High Steel’s responsibilities for safety compliance. Id. 

The responsibility for the safety of a particular project can

(and should) be delegated to the subcontractor that is to

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 21 of 40
22

actually perform that particular work. Id. “Logically, safety

responsibility best rests on the subcontractor doing the work,

for that party is most familiar with the work and its particular

hazards.” Id. 

Leonard establishes that IBM, the general contractor, could

delegate all of its responsibilities to Datatec, the

subcontractor, in which case IBM would not owe a duty to Warnick

and Warnick’s negligence claim against IBM would fail. The

question here is whether IBM did in fact delegate all of its

responsibilities to Datatec. 

It is undisputed that IBM was not physically “present” at

the Home Depot store on the day of the accident, nor had IBM been

“present” there for about nine months. See Doc. No. 29, Ex. O,

at 77 (Richard Clark, Home Depot corporate designee, depo.:

“[T]here was no need to have [IBM] on site representation [after

December 2002].”). Plaintiff concedes this point. Doc. No. 38,

¶ 3. Warnick argues that IBM was in control of Datatec’s

responsibilities even though it was not physically present at the

Home Depot store. While as a matter of law this proposition

might be true--a general contractor can “retain control” over a

subcontractor in spite of the general contractor’s lack of

physical presence, see Young v. Commercial Group, Inc., 2005 WL

591199, at *5 (E.D. Pa. Mar. 8, 2005)--a general contractor’s

absence from the worksite certainly militates in favor of finding

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 22 of 40
 The court in Pettyjohn denied the defendant summary 9

judgment, because it was unclear whether the defendant was

permitted to correct only “general, unsafe activity,” in which

case there would be insufficient “control,” or whether the

defendant was permitted to “specifically correct the manner in

which the work was being performed,” in which case the defendant

would have “retained control” sufficient to impose liability. 

Id. at *5.

23

that the contractor did not “retain control.”

Warnick asserts two nonexclusive theories for why IBM

“retained control” over the worksite. The first is based on the

contract between IBM and Datatec: that IBM did not delegate all

of its responsibilities to Datatec. The second is based on IBM’s

course of conduct: that IBM actually exercised control over

Datatec and its employees.

The contracts between IBM and Datatec merely retained for

IBM supervisory and inspection power; IBM was not in “control” of

the worksite. “The purpose of [Section 414] is to insulate from

liability those employers who retain only the general right of

inspection and supervision and not control over the conduct of

the work.” Pettyjohn v. Goodyear Tire & Rubber Co., 1992 WL

203390, at *5 (E.D. Pa. Aug. 14, 1992).9

The Pennsylvania Commonwealth Court observed in LaChance

that “[w]hile the general contractor’s retained control may be

less than that of a master over a servant, mere supervision over

the work of a subcontractor, up to and including the right to

stop a project, is not control sufficient to impose liability.” 

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 23 of 40
 This proposition stems from comment b to Section 414: 10

The rule stated in this Section is usually, though not

exclusively, applicable when a principal contractor

entrusts a part of the work to subcontractors, but

himself or through a foreman superintends the entire

job. In such a situation, the principal contractor is

subject to liability if he fails to prevent the

subcontractors from doing even the details of the work

in a way unreasonably dangerous to others, if he knows

or by the exercise of reasonable care should know that

the subcontractors’ work is being so done, and has the

opportunity to prevent it by exercising the power of

control which he has retained in himself. So too, he

is subject to liability if he knows or should know that

the subcontractors have carelessly done their work in

such a way as to create a dangerous condition, and

fails to exercise reasonable care either to remedy it

himself or by the exercise of his control cause the

subcontractor to do so.

Restatement (Second) of Torts § 414, cmt. b.

24

869 A.2d at 1058. In LaChance, in the contract between PennDOT 10

(the landowner) and Baker (the contractor and the plaintiff’s

employer), Baker expressly assumed “responsibility for project

safety through compliance ‘at all times with applicable Federal,

State, and local laws, provisions, and policies governing safety

and health.’” Id. at 1059-60 (quoting the contract). In

addition, Baker agreed to “[k]eep direct control of the contract

and see that the work is properly supervised and is performed

satisfactorily and efficiently” and also “[s]upervise the work

personally or appoint a competent superintendent or

representative to be on the project at all times.” Id. at 1060

(quoting the contract). The contract gave PennDOT a broad right

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 24 of 40
25

of inspection and the right to stop work and provided that

PennDOT’s “inspection staff will continuously monitor safety on a

routine basis.” Id. (quoting the contract). “PennDOT’s

inspection rights, exercised to assure itself that Baker

performed its work safely, as Baker had agreed in its contract,

did not make PennDOT the guarantor of the safety of Baker’s

employees.” Id. at 1060-61. 

Similarly, in White v. Chevron, U.S.A., Inc., 1994 WL

285028, at *2 (E.D. Pa. June 27, 1994), the contract stated:

“[the contractor’s] work will be performed under the direction

of, and coordinated by the appropriate [landowner]

representative.” This contract language indicated that “[r]ather

than controlling the work performed, [the landowner] was merely

to direct and coordinate.” Id. (emphasis in original). The

court also held that the contract provision that “all

contractor’s Maintenance personnel will be available to work

under the supervision of [the landowner’s] supervisor” merely

established the landowner’s supervisory role, which does not

“rise to the level of operative control.” Id. at *3. 

Young v. Commercial Group, Inc., 2005 WL 591199 (E.D. Pa.

Mar. 8, 2005), is illustrative of the absence of an express

delegation of duties to the subcontractor. In Young, a

subcontractor’s employee was injured while working at a Home

Depot store. Id. at *1. Home Depot had hired Milric, a general

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 25 of 40
26

contractor, which in turn had hired two subcontractors, L.G.B.

and Commercial Group. Id. Young, the plaintiff, was employed by

L.G.B. Id. The court denied Milric’s motion for summary

judgment, because “there was no clear delegation [to either

subcontractor] of the duty to provide safety precautions and to

supervise the work being performed.” Id. at *6. At the time of

the accident, Milric and Commercial Group were operating under an

oral contract, which did not address the scope of Milric’s

delegation, if at all, of any duties to Commercial Group. Id. 

Here, IBM points to contract language that it delegated all

project management responsibilities (including safety) to

Datatec. One of the contracts between IBM and Datatec (the

Cabling Services--Statement of Work (SOW), Doc. No. 38, Ex. E)

provides that “[t]he Supplier [Datatec] will provide on-site

project management.” SOW ¶ 8. Another contract (the Master

Procurement Agreement (MPA), Doc. No. 29, Ex. I), provides that

Datatec will “be responsible for the supervision, control,

compensation, withholdings, health and safety of Supplier

Personnel” and “ensure Supplier Personnel performing services on

Buyer’s premises comply with On Premises Guidelines.” MPA §

11.0. And still a third contract (the Design-Build Services

Attachment (DBSA) to the IBM Master Procurement Agreement and

Customer Solutions Procurement Agreement, Doc. No. 29, Ex. I),

provides that Datatec “will maintain a safety and health program

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 26 of 40
27

at the job site, and take all necessary precautions to protect

the Work, all individuals on premises, the public, and adjacent

property.” DBSA at 4.

However, Datatec points to contract language that IBM

retained certain responsibilities. The SOW provides that “IBM

has the right to review, approve and request removal of Supplier

personnel and/or your subcontractor personnel on any project in

support of [this agreement].” SOW ¶ 4. The SOW also details the

responsibilities of the Datatec project manager vis-a-vis the IBM

project manager (allegedly evidencing IBM’s involvement in the

project):

The Supplier [Datatec] will appoint a Project Manager

(supervisor) who will have explicit responsibility for

the administration and technical direction of

Subcontractor’s activities.

Project Manager duties include:

With the IBM Project Manager, discuss the SOW, and

Change Control Procedure documented in this Cabling

Services--SOW, and review the responsibilities of all

parties. 

Provide orientation for new project team members.

Establish and administer project leadership procedures

and develop project work plans in coordination with the

IBM Project Manager.

Measure and evaluate project progress against

established work plans and schedules.

Estimate tasks in hours, and on a weekly basis (or as

agreed to with the IBM Project Manager) report task

progress in actual hours worked and estimate hours to

complete, as required by the IBM Project Manager.

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 27 of 40
28

Provide, as required by the IBM Project Manager,

written progress reports to the IBM Project Manager.

Administer the Change Control Procedure with the IBM

Project Manager.

SOW § V.

In short, under the contracts, (1) IBM had the right to

approve and remove Datatec’s personnel and (2) IBM’s project

manager had general coordination responsibilities and inspection

rights. As explained in LaChance and White, such general duties

under a contract to supervise the subcontractor and monitor its

work do not make the general contractor liable under Section

414’s “retained control” exception. “[The owner’s] inspection

rights, exercised to assure itself that [the contractor]

performed its work safely, as [the contractor] had agreed in its

contract, did not make [the owner] the guarantor of the safety of

[the contractor’s] employees. . . . [The contractor’s] contract

performance had to meet [the owner’s] contract specifications,

but [the contractor] controlled the manner of performance. This

is how contractual relationships work.” 869 A.2d at 1060-61. 

Therefore, under the contracts, IBM did delegate all of its

“control” to Datatec and thus did not owe Warnick any duty.

Warnick also argues that IBM’s course of conduct shows that

it “retained control.” In support, Warnick points to the

deposition testimony of Gary Correll, IBM’s corporate designee

and the project executive on the Home Depot account. Gary

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 28 of 40
29

Collis, one of the five IBM project managers that reported to

Correll, was the project manager “who was responsible for the

Datatec relationship and dealt on the day-to-day activities with

Datatec’s project manager, Jay Claman.” Doc. No. 29, Ex. P, at

101-02 (Gary Correll depo.). Correll testified that Collis was

responsible for coordinating with Datatec, including on any

safety issues that Datatec might have. Id. at 105-06. When

asked, “Would there be anyone who did have day-to-day interaction

with this project that would be able to tell me whether IBM had

any safety duties,” Correll responded, “That would be me as

project team over there. And I would contend that we did have a

responsibility when safety violations were brought to our

attention to deal with those safety requirements at that

particular time.” Id. at 114.

Correll testified that he knew of two instances in which

Datatec workers at Home Depot stores had safety-related issues:

One was using -- the Datatec crew had used a Home

Depot forklift to gain access to the ceiling for

running some cables, which was not something that Home

Depot wanted or IBM wanted.

They were supposed to use a scissor lift. The

other one was a Datatec employee had gotten injured in

one of the roll-up doors on the back of the Home Depot

building. Those were reported to us.

[The incident about the scissor lift] was

communicated through Home Depot directly to IBM.

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 29 of 40
 At the deposition, counsel for IBM objected to this line 11

of questioning. Correll could not identify which Home Depot

store(s) had these problems. Drawing inferences in favor of

Plaintiff, it is possible that IBM had notice of these safety

issues at the store in question.

30

Id. at 106-07.11

These statements by Correll are not evidence that IBM

“retained control” over the means that Datatec performed its

work. Correll expressed concern for the safety of Datatec’s

workers; concern is not control. In Farabaugh, the hiring party

went so far as to hire another contractor specifically to ensure

that other contractors were complying with applicable safety

regulations. 911 A.2d at 1275. The court held that the hiring

of this “safety contractor” did not mean that the hiring party

“retained control” over the performance of the other contractors’

work; rather, it was a prudent maneuver to try to minimize

workers’ injuries. Correll’s statements are thus tantamount to

the “safety contractor’s” role in Farabaugh to ensure that other

contractors were complying with applicable safety regulations. 

That a hiring party had someone monitor safety issues at the

worksite does not mean that the hiring party “retained control”

over worksite safety. 

IBM was not at the worksite; IBM did not tell Datatec how to

do its job. When IBM was notified that Datatec workers might be

working in an unsafe manner, it expressed its concern to Datatec. 

Indeed, Correll thought that IBM had a “responsibility” to do so. 

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 30 of 40
 Bullman v. Giuntoli, 761 A.2d 566 (Pa. Super. Ct. 2000), 12

is not helpful to Plaintiff’s case. In Bullman, the Pennsylvania

Superior Court held that a landowner did “retain control” over

his home construction site, in spite of his hiring of a general

contractor. Id. at 578. The homeowner visited the site daily

and frequently consulted with the general contractor and changed

the specifications for the construction. Id. However, one

factor weighed heavily on the court’s totality of the

circumstances analysis: that the homeowner had notice from other

individuals, including his wife and certain subcontractors, about

the potentially dangerous condition, and yet took no action. Id. 

This factor did not go to whether the homeowner owed a duty to

the visitor; rather, that the homeowner had notice went to the

issue of whether the homeowner breached his duty to the visitor. 

In other words, the court improperly conflated the two elements

(duty and breach) of the negligence claim in its analysis.

 Note that Bullman produced a vigorous dissent that argued

that the majority incorrectly reached the “retained control”

issue. Id. at 579 (Johnson, J., concurring and dissenting). As

explained in the dissent, the lower court never decided whether

the homeowner “retained control,” and that issue was not briefed

to the Superior Court. Id. The majority, after reversing the

lower court’s grant of summary judgment on the assumption of risk

doctrine, volunteered that summary judgment was inappropriate

because the homeowner had “retained control.” 

31

But IBM’s actions did not constitute “control” over the way that

Datatec performed its work.12

The contract language gives IBM the power only to coordinate

and inspect Datatec’s work. There is nothing in the contract

that differs from the contract language from other cases in which

courts have held that the general contractor delegated its

responsibilities (and hence, “control”) to the subcontractor. In

addition, IBM’s course of conduct, even when viewed in the light

most favorable to Warnick, shows that IBM did not have control

over how Datatec employees performed their jobs.

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 31 of 40
32

Therefore, there is no issue of material fact as to whether

IBM “retained control” over Datatec. If IBM did not retain

control, then, as a matter of law, IBM did not owe Warnick a duty

of reasonable care. IBM is entitled to summary judgment on

Warnick’s negligence claim against it.

c. Policy considerations

While under the applicable law Home Depot and IBM clearly

did not owe a duty to Warnick, it is also important to note that

the imposition of a duty on Home Depot or IBM in this situation

would go against public policy.

First, it would go against public policy to hold that IBM or

Home Depot “retained control” simply because of the safety

measures they took. If a landowner or general contractor knows

about a subcontractor’s employee performing an activity unsafely,

the landowner or general contractor should be encouraged to speak

up. If they were deemed to have “retained control” in this

situation, then IBM and Home Depot would, in the future, be

silent when notified of an unsafe condition, in order to protect

themselves. It is doubtful that Pennsylvania would want to

discourage hiring parties from notifying contractors about

possible safety violations. 

IBM and Home Depot both admitted that if they saw a Datatec

employee working unsafely they would have a responsibility to say

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 32 of 40
33

something. This responsibility stems from two places. One, as a

matter of common sense and human decency, if they thought that a

Datatec worker was being unsafe, they should express their

concern for his safety and that of others around him. Two, as a

contractual matter, Datatec explicitly assumed responsibility for

the supervision, control, . . . health and safety of [its]

Personnel.” If IBM or Home Depot becomes aware of Datatec

employees working unsafely, they should notify Datatec because

Datatec would be violating its duties under the contract.

Second, to impose a duty on Home Depot based on the

“peculiar risk” exception would only serve to encourage

contractors and their employees to perform their jobs unsafely. 

The “peculiar risk” exception should be applied only to those

activities that are inherently dangerous, not to those activities

that are made dangerous by the contractor’s negligence. If

Warnick’s argument here were to succeed, “the more negligent that

an independent contractor and/or his servants are in performing

an ordinary task, the more likely it is that the Peculiar Risk

Doctrine should be invoked and the employer of the contractor

should be held vicariously liable.” Id. at 1387. This would

indeed be poor public policy.

As a matter of good public policy, Pennsylvania law

encourages safe work practices by contractors’ employees. 

Imposition of a duty here on Home Depot or IBM would go against

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 33 of 40
34

this policy.

d. Conclusion: Plaintiffs’ claims

Thomas Warnick’s negligence claims against both Home Depot

and IBM cannot survive. Maureen Warnick’s claim against both

Home Depot and IBM for loss of consortium is derivative to her

husband’s claims, and therefore also cannot survive. Judgment

will be entered on behalf of Home Depot as to Count I, IBM as to

Count II, and Home Depot and IBM as to Count IV.

2. Home Depot and IBM’s claims against each other

Although the Court has determined that Defendants Home Depot

and IBM are entitled to summary judgment on Plaintiffs’ claims

against them, this case is not yet over. Home Depot and IBM have

cross-claimed against each other.

The crux of the cross-claims is for contribution if judgment

in favor of Plaintiff is entered. In light of the decisions

reached here, judgment in favor of Plaintiff will not be entered,

and these cross-claims are therefore moot.

However, Home Depot has also asserted two breach of contract

claims against IBM. Home Depot asks for IBM to assume Home

Depot’s defense and for IBM to reimburse Home Depot for all

expenses incurred in this litigation. The former request is

moot, as the case with respect to Plaintiff is now moot. The

only remaining question is whether, under the terms of the

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 34 of 40
 It is unclear how the SOW was executed six days before it 13

was issued.

 The IBM International Customer Agreement (ICA) referenced 14

in the SOW was executed on September 27, 1999. Doc. No. 29, Ex.

H, at 1. It “covers business transactions [Home Depot] may wish

to do with [IBM] to purchase Machines, license Programs, and

acquire Services.” Id.

35

agreement between them, IBM is liable to Home Depot for Home

Depot’s costs in this litigation.

Home Depot issued a Notice of Request for Proposal for Store

Technology Enhancement Plan (RFP), dated May 14, 2002, in which

it “invite[d] prospective contractors to submit a written

proposal.” Doc. No. 29, Ex. F, at i-ii. The RFP was never

signed by IBM. IBM then submitted a Compliant Data

Infrastructure and Vendor Project Management of STEP Statement of

Work (SOW), dated August 1, 2002, which “represent[ed] IBM’s

understanding of [Home Depot’s] requirements as stated in [Home

Depot’s] RFP and subsequent discussions.” Doc. No. 29, Ex. G, at

i, 1. The SOW was signed by both parties on July 26, 2002.13

Id. at 35. Immediately above the signatures on the SOW was the

following provision: “Each of us agrees that the complete

agreement between us about these Services consists of 1) this

Statement of Work, including authorized Project Change Requests

and 2) the IBM International Customer Agreement.” Id. 14

The dispute between Home Depot and IBM hinges on whether the

RFP was incorporated into the subsequent contract between Home

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 35 of 40
 The ICA provides that New York State law governs the 15

agreement. ICA at 31. Neither party argues that the Court

should apply another state’s law, so this Court will apply New

York law.

36

Depot and IBM. The RFP stated that the winning bidder would

indemnify and defend Home Depot in any action arising out of the

work and that the winning bidder would also maintain an insurance

policy naming Home Depot as an additional insured. Doc. No. 29,

Ex. F, App. A, §§ 7.1, 7.3(b). Therefore, if the RFP is part of

the contract, then Home Depot is entitled to judgment as a matter

of law; on the other hand, if the RFP is not part of the

contract, then IBM is entitled to judgment as a matter of law.

Under New York law, “when parties set down their agreement 15

in a clear, complete document, their writing should as a rule be

enforced according to its terms.” W.W.W. Assocs., Inc. v.

Giancontieri, 566 N.E.2d 639, 642 (N.Y. 1990). “The

interpretation of the terms of a written agreement that are clear

and unambiguous is a matter of law for the court, and the court

should construe the words and phrases used according to their

plain meaning.” Russack v. Weinstein, 737 N.Y.S.2d 638, 640

(App. Div. 2002).

The SOW contains a merger or integration clause, which

provides that the whole of the agreement between the parties is

embodied in the contract at hand, to the exclusion of all other

alleged agreements. See generally 11 Williston on Contracts §

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 36 of 40
37

33:21 (4th ed.). “A completely integrated contract precludes

extrinsic proof to add to or vary its terms.” Primex Int’l Corp.

v. Wal-Mart Stores, Inc., 679 N.E.2d 624, 627 (N.Y. 1997).

“[A]bsent fraud or mutual mistake, where the parties have reduced

their agreement to an integrated writing, the parol evidence rule

operates to exclude evidence of all prior or contemporaneous

negotiations between the parties offered to contradict or modify

the terms of their writing.” Marine Midland Bank-Southern v.

Thurlow, 425 N.E.2d 805, 807 (N.Y. 1981). 

Home Depot has put forth no evidence of fraud or mutual

mistake. Rather, it relies on the SOW’s statement that the SOW

represents “IBM’s understanding of [Home Depot’s] requirements as

stated in [Home Depot’s] RFP.” The RFP is not incorporated or

integrated into the SOW. Indeed, the SOW’s integration clause

provides that the “complete agreement” between the parties

consists of only two documents: the SOW and the ICA. By the

SOW’s own terms, the RFP was not incorporated into the agreement

between the parties. Consideration of terms outside the SOW or

ICA is barred by the parole evidence rule. In other words, the

contract speaks for itself, and it does not contain the

indemnification or defense clause asserted by Home Depot.

Therefore, Home Depot’s claim against IBM for IBM to

reimburse Home Depot for the costs of its defense in this suit is

without merit. IBM is entitled to summary judgment on this

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 37 of 40
 Although IBM did not make a formal motion for summary 16

judgment against Home Depot, it is entitled to summary judgment. 

See infra note 3. 

38

claim.16

III. CONCLUSION

Thomas Warnick’s claims for negligence against Home Depot

(Count I) and IBM (Count II) cannot, as a matter of law, proceed. 

Maureen Warnick’s claim for loss of consortium, which is

derivative of her husband’s negligence claims, also, as a matter

of law, cannot proceed. Therefore, Home Depot and IBM are

entitled to summary judgment on Plaintiffs’ claims against them.

The contract between Home Depot and IBM does not contain a

provision whereby IBM is required to provide for Home Depot’s

defense in a suit arising from Home Depot’s alleged negligence. 

Therefore, IBM is entitled to summary judgment on Home Depot’s

claims against it.

An appropriate Order follows.

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 38 of 40
39

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS WARNICK and :

MAUREEN WARNICK, : CIVIL ACTION

:

Plaintiffs, : NO. 05-2529

:

v. :

:

THE HOME DEPOT U.S.A., INC., :

et al., :

:

Defendants. :

ORDER

AND NOW, this 10th day of May 2007, for the reasons stated

in the accompanying Memorandum, it is hereby ORDERED that

Defendant Home Depot’s motion for summary judgment against

Plaintiffs (doc. no. 29) is GRANTED. Home Depot is granted

summary judgment on Plaintiffs’ remaining counts against it,

Counts I and IV.

IT IS FURTHER ORDERED that Defendant IBM’s motion for

summary judgment against Plaintiffs (doc. no. 32) is GRANTED. 

IBM is granted summary judgment on Plaintiffs remaining counts

against it, Counts II and IV.

IT IS FURTHER ORDERED that Defendant Home Depot’s motion for

summary judgment against Defendant IBM on Home Depot’s crossclaims (doc. no. 29) is DENIED IN PART and DENIED AS MOOT IN

PART. The motion is denied as moot as to Count I and the motion

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 39 of 40
40

is denied as to Counts II and III.

IT IS FURTHER ORDERED that Defendant Home Depot’s motion for

summary judgment against Defendant IBM on IBM’s cross-claim (doc.

no. 29) is DENIED AS MOOT. 

IT IS FURTHER ORDERED that Defendant IBM’s motion for

summary judgment against Defendant Home Depot on Home Depot’s

cross-claims (doc. no. 31, construed by the Court as a motion for

summary judgment against Home Depot) is DENIED AS MOOT IN PART

and GRANTED IN PART. The motion is denied as moot as to Count I

and the motion is granted as to Counts II and III.

IT IS FURTHER ORDERED that Defendant IBM’s motion for

summary judgment against Defendant Home Depot on IBM’s crossclaim (doc. no. 31, construed by the Court as a motion for

summary judgment against Home Depot) is DENIED AS MOOT.

AND IT IS SO ORDERED.

S/Eduardo C. Robreno

EDUARDO C. ROBRENO, J.

Case 2:05-cv-02529-ER Document 39 Filed 05/11/07 Page 40 of 40