1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL HOLT and : 4:15-CV-01728

CASEY HOLT :

:

Plaintiffs, :

v. :

:

LOWE’S HOME CENTERS, LLC, :

: (Judge Brann)

Defendant.

MEMORANDUM

February 10, 2016

Pending before this Court is a motion to dismiss for failure to state a claim 

upon which relief could be granted1filed by Defendant Lowe’s Home Centers, 

LLC (hereinafter “Lowe’s”).

2

Lowe’s seeks to dismiss the complaint filed by 

Plaintiffs Michael Holt and Casey Holt (collectively “the Plaintiffs”)3in its entirety 

or, alternatively, to dismiss the punitive damages claim. The motion has been fully 

briefed and is ripe for disposition. Because the Plaintiffs have failed to plausibly 

state a claim that entitles them to relief, Lowe’s motion to dismiss is granted.

I. BACKGROUND

This action is the result of a tragic incident. Mr. Holt was employed by 

Extreme Concepts to supervise and manage a crew contracted to repair and replace 

 

1 ECF No. 13.

2 Lowe’s Home Centers, LLC was improperly named as Lowe’s Companies, Inc. in the complaint.

3 ECF No. 1, Exhibit A.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 1 of 23
2

greenhouse buildings and provide snow removal services at Lowe’s stores 

nationwide.4 

Following a snow storm, the Lowe’s store in Montoursville, Pennsylvania 

contracted with Rough Brothers Inc., a corporation that specializes in designing, 

manufacturing, and constructing greenhouses, to provide emergency snow removal 

services to remove nearly twelve to eighteen inches of snow that had accumulated 

on the roof of its greenhouse.5Lowe’s also requested that the snow removal team 

survey the roof for damage, replace damaged panels, and secure any “structural 

damage” that the roof may have sustained.

6 Rough Brothers Inc., in turn, 

subcontracted with Extreme Concepts, who instructed Mr. Holt and his crew to 

report to the Montoursville Lowe’s and provide the requested services.

7

As he shoveled and raked snow from the roof of the greenhouse, Mr. Holt

stood on a steel drainage channel adjacent to the greenhouse roof.

8 Mr. Holt 

slipped on ice and fell onto and through a greenhouse roof panel, landing fifteen 

feet below on the concrete floor.9 As a result of the fall, Mr. Holt suffered serious 

injuries, including bone fractures, a spinal cord injury, a head injury, hearing loss, 

paralysis, and permanent paraplegia.

10

 

4 ECF No. 1, Exhibit A at ¶¶ 10, 13.

5

Id. at ¶ 8.

6

Id. at ¶ 25.

7

Id. at ¶¶ 10, 17.

8

Id. at ¶¶ 30-32.

9

Id. at ¶ 32.

10 Id. at 57.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 2 of 23
3

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a 

motion to dismiss for “failure to state a claim upon which relief can be granted.” 

Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation 

by dispensing with needless discovery and factfinding.”11 “Rule 12(b)(6) 

authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”12

This is true of any claim, “without regard to whether it is based on an outlandish 

legal theory or on a close but ultimately unavailing one.”13

Beginning in 2007, the Supreme Court of the United States initiated what 

some scholars have termed the Roberts Court’s “civil procedure revival” by 

significantly tightening the standard that district courts must apply to 12(b)(6) 

motions.14 In two landmark decisions, Bell Atlantic Corporation v. Twombly and 

Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by 

“signal[ing] to lower-court judges that the stricter approach some had been taking 

was appropriate under the Federal Rules.”15 More specifically, the Court in these 

 

11

 In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.) (quoting Szabo v. 

Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)). Neitzke v. Williams, 490 U.S. 

319, 326–27 (1989).

12

 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).

13

 Neitzke, 490 U.S. at 327.

14

 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig. 313 (2012).

15

 550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 3 of 23
4

two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v. 

Gibson and replaced it with a more exacting “plausibility” standard.16

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 

to relief that is plausible on its face.’”17 “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.”18 “Although the 

plausibility standard does not impose a probability requirement, it does require a 

pleading to show more than a sheer possibility that a defendant has acted 

unlawfully.”19 Moreover, “[a]sking for plausible grounds . . . calls for enough facts 

to raise a reasonable expectation that discovery will reveal evidence of 

[wrongdoing].”20

The plausibility determination is “a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.”21 No matter 

the context, however, “[w]here a complaint pleads facts that are ‘merely consistent 

 

16

 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that Twombly retired the 

Conley no-set-of-facts test”).

17

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

18

 Iqbal, 556 U.S. at 678.

19

 Connelly v. Lane Const. Corp., No. 14-3792, 2016 WL 106159, at *3 (3d Cir. Jan. 11, 2016) (Jordan, J.) (internal 

quotations and citations omitted).

20

 Twombly, 550 U.S. at 556.

21

 Iqbal, 556 U.S. at 679.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 4 of 23
5

with’ a defendant’s liability, it ‘stops short of the line between possibility and 

plausibility of entitlement to relief.’”22

When disposing of a motion to dismiss, a court must “accept as true all 

factual allegations in the complaint and draw all inferences from the facts alleged 

in the light most favorable to [the plaintiff].”23 However, “the tenet that a court 

must accept as true all of the allegations contained in the complaint is inapplicable 

to legal conclusions.”24 “After Iqbal, it is clear that conclusory or ‘bare-bones’ 

allegations will no longer survive a motion to dismiss.”25 “Threadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements, do not 

suffice.”26

As a matter of procedure, the United States Court of Appeals for the Third 

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court 

reviewing the sufficiency of a complaint must take three steps. First, it 

must tak[e] note of the elements [the] plaintiff must plead to state a 

claim. Second, it should identify allegations that, because they are no 

more than conclusions, are not entitled to the assumption of truth. 

Finally, [w]hen there are well-pleaded factual allegations, [the] court 

should assume their veracity and then determine whether they 

plausibly give rise to an entitlement to relief.27

 

22

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

23

 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

24

 Iqbal, 556 U.S. at 678 (internal citations omitted).

25

 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).

26

 Iqbal, 556 U.S. at 678.

27

 Connelly, 2016 WL 106159, at *4 (internal quotations and citations omitted).

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 5 of 23
6

III. DISCUSSION

The Plaintiffs allege three counts against Lowe’s: Count I: Negligence 

pursuant to Restatement (Second) of Torts §§ 413, 416, and 427; Count II: 

Ordinary Negligence; and Count III: Loss of Consortium. In its motion to dismiss,

Lowes argues that the Plaintiffs have failed to state a claim upon which relief can 

be granted and seeks the dismissal of the complaint in its entirety or, in the 

alternative, dismissal of the punitive damages claim.28 The Court will examine 

Counts I and II29 through the lens of ordinary negligence.

In Count I of their complaint, Plaintiffs argue that, as a business invitee, 

Lowe’s owed Mr. Holt “the highest duty of care owed to any entrant upon the land, 

to protect him against both know(sic) dangers and against those which might be 

discovered with reasonable care.”30 Plaintiffs contend that Lowe’s knew, or could 

have discovered had it exercised reasonable care, that the deteriorating greenhouse 

roof panels would pose an unreasonable risk of harm to Mr. Holt.31 Lowe’s, 

Plaintiffs argue, had a duty to keep its roof safe and to otherwise take reasonable 

measures to ensure precautions were taken to address the danger.32

To establish a claim for negligence in Pennsylvania, a plaintiff must 

establish 

 

28 ECF No. 14.

29 The Court will not consider Count III for loss of consortium, as it is dependent on Counts I and II to survive. 

30 ECF No. 1 at ¶ 68.

31 Id. at ¶ 69.

32 Id. at ¶ 70.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 6 of 23
7

(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.33

As there is no question that Mr. Holt suffered harm, the Court will begin its 

analysis by determining whether Lowe’s had a duty to Mr. Holt and whether 

Lowe’s appropriately discharged its duty under the applicable standard of care.

Lowe’s Motion to Dismiss Must Be Granted Because Lowe’s Discharged Its 

Duty to Plaintiffs

A. Duty: Premises Liability

In premises liability cases, the applicable standard of care depends on 

whether the injured plaintiff is categorized as an invitee, a licensee, or trespasser

on the property where he was injured.

34 Business visitors, defined as those “invited 

to enter or remain on land for a purpose directly or indirectly connected with 

business dealings with the possessor of the land,” are categorized as invitees.35A 

possessor of land generally has the duty to either “use reasonable care to make the 

premises safe for [those] invited to use the premises for business purposes” or “to 

 

33 Vanchure v. Wegmans Food Markets, Inc., 2014 WL 1746844, *4 (M.D. Pa. May 1, 2014) (Caputo, J.) (citing 

Nw. Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 139 (3d Cir. 2005)).

34 Vanchure, 2014 WL 1746844 at *4 (citing Davies v. McDowell Nat'l Bank, 180 A.2d 21 (1962).

35 Rest. Second of Torts § 332.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 7 of 23
8

give them adequate and timely warning of dangers known to him but unknown to 

the business invitees.”

36

In the matter at hand, Lowe’s contracted with Rough Brothers Inc., who in 

turn, contracted with Extreme Concepts, Mr. Holt’s employer. With their 

complaint, Plaintiffs submit the “Rough Brothers Report,” or the contract 

(hereinafter “the Contract”) between Rough Brothers Inc. and Extreme Concepts.37

Page 2 of the Contract provides that Rough Brothers Inc. assigned a contractor, 

Extreme Concepts, to “Lowe’s Montoursville, PA #0356.”

38 Under “Description of 

work to be performed,” the following instructions appear:

EMERGENCY. Store is reporting that snow removal is needed at this 

location. Bar base and Panels are deflecting. Survey entire garden 

center for all damage and remove snow if needed. Note how many 

panels were cut, and how many panels need replaced SEPARATELY. 

While at this store, if possible secure all hanging shade and any 

structure damage and make the store safe for customers and 

associates.39

According to the Contract, Extreme Concepts was hired to provide snow 

removal services. Rough Brothers Inc., in its contract with Extreme Concepts, 

indicated that Lowe’s required snow removal services and had requested that 

Extreme Concepts, as noted above, “survey entire garden center for all damage” 

and further “secure all handing shade and any structure damage and make the store 

 

36 Crane v. I.T.E. Circuit Breaker Co., 278 A.2d 362, 363 (Pa. 1971) (citing Janowicz v. Crucible Steel Company of 

America, 433 Pa. 304, 249 A.2d 773; Restatement (Second) of Torts § 343.)

37 ECF No. 1, Exhibit A.

38 Id.

39 ECF No. 1, Exhibit A.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 8 of 23
9

safe . . .”40 Extreme Concepts was on notice that there was snow, and likely ice, on 

the premises and was assigned the task of surveying and repairing structural 

damage, leading to the conclusion that the workers may find structural damage. 

Accordingly, Lowe’s appropriately discharged its duty to warn Mr. Holt of the 

possibility of snow and structural damage.

B. Duty: Peculiar Risk Doctrine

While a property owner owes a duty to business invitees, as described 

above, it is well-established law in the Commonwealth of Pennsylvania that the 

owner of property that hires an independent contractor is not liable for physical 

harm caused to a person by an act or omission of the contractor or his servants.41

The rationale behind this principle is that,

“[w]hen an employer has exercised care in choosing a careful and 

competent contractor to do work on the employer's premises, and has 

entrusted the control and possession of the premises, and the 

performance of the task to that contractor, the employer is generally 

shielded from liability to third parties due to the negligence of the 

contractor.”

42

 

40 Id.

41 Hader v. Coplay Cement Co., 189 A.2d 271 (Pa. 1963); see also Poehmel v. Aqua America Pennsylvania, Inc., 

2013 WL 27493, *2 (M.D. Pa. Jan. 2, 2013) (Mariani, J.) (“For over 100 years, the accepted and general rule 

regarding liability in our Commonwealth has been that a landowner who engages an independent contractor is not 

responsible for the acts or omissions of such independent contractor or his employees.”)(citing Beil v. Telesis 

Constr., Inc., 11 A.3d 456, 466 (Pa. 2011)), McDonough v. U.S. Steel Corp., 324 A.2d 542, 545 (Pa. Super. Ct. 

1974).

42 McDonough, 324 A.2d at 545.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 9 of 23
10

This thinking is in line with “the long-standing notion that one is not vicariously 

liable for the negligence of an independent contractor, because engaging an 

independent contractor ‘implies that the contractor is independent in the manner of 

doing the work contracted for.’”43

There are, however, limited, narrowly construed44 exceptions to this general 

rule.45 One such rule, on which the Plaintiffs rely in their complaint, is the Peculiar 

Risk Doctrine, which is set forth in the Restatement (Second) of Torts §§ 416 and

427. 46

Section 416:

One who employs an independent contractor to do work which the employer 

should recognize as likely to create during its progress a peculiar risk of 

physical harm to others unless special precautions are taken, is subject to 

liability for physical harm caused to them by the failure of the contractor to 

exercise reasonable care to take such precautions, even though the employer 

has provided for such precautions in the contract or otherwise.

47

 

43 Beil, 11 A.3d at 466 (citing Silveus v. Grossman, 161 A. 362, 364 (1932)).

44 Olin v. George E. Logue, Inc., 119 F. Supp. 2d 464, 470 (M.D. Pa. 2000) (citing Motter v. Meadows Ltd. P’ship, 

680 A.2d 887, 891 (Pa. Super. Ct. 1996)) (noting that because the Peculiar Risk Doctrine is an exception to the 

general rule of non-liability, it will be construed narrowly by the courts).

45Another frequently cited exception is the “retained control” exception. “One who entrusts work to an independent 

contractor, but who retains the control of any part of the work” may still be held liable for harm to others. Poehmel 

v. Aqua America Pennsylvania, Inc., 2013 WL 27493, *2 (M.D. Pa. Jan. 2, 2013) (citing Restatement (Second) of 

Torts § 414). To retain control, it “is not enough that [the property owner] 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 . . . 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.” Beil, 11 A.3d at 460 

(citing Restatement (Second) of Torts § 414 at cmt. c). A property owner can retain control by either retaining 

control over the “manner, method, and operative details of the work” in contract provisions or by exercising actual 

control over the work. Poehmel, 2013 WL 27493 at *2 (citing Beil, 11 A 3d at 467). Plaintiffs make no mention of 

this exception in their complaint and make no allegations that suggest to this Court that this exception would be 

applicable. 

46 Restatement (Second) of Torts §§ 416, 427; see also Ortiz v. Ra-El Dev. Corp., 528 A.2d 1355, 1357 (Pa. Super. 

Ct. 1987). 

47 Restatement (Second) of Torts § 416 (emphasis added).

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 10 of 23
11

Section 427: 

One who employs an independent contractor to do work involving a 

special danger to others which the employer knows or has reason to 

know to be inherent in or normal to the work, or which he 

contemplates or has reason to contemplate when making the contract, 

is subject to liability for physical harm caused to such others by the 

contractor’s failure to take reasonable precautions against such 

danger.48

In its precedential decision Ortiz v. Ra-El Development Corporation,

49 the 

Superior Court of Pennsylvania “enunciated a precise definition” for the terms 

“peculiar risk” in Section 416 and “special danger” in Section 427. The Ortiz court 

held that a “special danger” or “peculiar risk” exists where:

1) the risk is foreseeable to the employer of the independent contractor at 

the time the contract is executed, i.e., a reasonable person, in the position 

of the employer, would foresee the risk and recognize the need to take 

special measures; and

2) the risk is different from the usual and ordinary risk associated with the 

general type of work done, i.e., the specific project or task chosen by the 

employer involves circumstances that are substantially out-of-theordinary.50

Whether a risk is “peculiar” for the purposes of the Peculiar Risk Doctrine is 

a “mixed question of law and fact which can be made, in clear cases, by the trial 

 

48 Restatement (Second) of Torts § 427 (emphasis added).

49 528 A.2d at 1357.

50 Ortiz, 528 A.2d at 1358. This two-pronged test is hereinafter referred to as the Ortiz test.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 11 of 23
12

judge as a matter of law.”51 The matter of whether the risk is “peculiar” should be 

decided by the court prior to submission to a jury.52 If unclear, however, and 

reasonable minds might differ as to whether the risk is peculiar, the issue should be 

submitted to the jury.53

The Plaintiffs argue that a combination of conditions at the Montoursville 

Lowe’s rendered the risk faced by Mr. Holt “peculiar” under the totality of the 

circumstances.54 While they admit that, generally, “roofing work” is not considered 

unusually dangerous, four circumstances made the undertaking of this job an 

exception.55

First, according to the Plaintiffs, Lowe’s typically uses polycarbonate panels 

in its greenhouse roofs.56 The Montoursville Lowes, however, had atypical panels 

made of thin fiberglass or plastic, making this particular greenhouse roof less 

stable than other Lowe’s greenhouses.57 Second, Lowe’s had knowledge that the 

greenhouse panels were deteriorated and needed repair.58 Third, the panels were 

 

51 Motter, 680 A.2d at 891 (citing Ortiz, 528 A.2d at 1359 (internal citations omitted)). See also McDonough v. U.S. 

Steel Corp., 324 A.2d 542, 546, n. 6 (Pa. 1974)(“The distinction between ‘ordinary risks' and ‘peculiar risks' has 

been described as ‘shadowy at best’. The definitions appearing in the Restatement provide general guidelines for 

making the distinction, and the illustrations give examples contrasting ordinary and peculiar risks . . . The 

determination is a mixed question of law and fact, and may, in clear cases, be made by the trial judge as a matter of 

law.” (internal citations omitted)). 

52Olin, 119 F. Supp. 2d at 470 (citing Lorah v. Luppold Roofing Co., Inc., 622 A.2d 1383, 1386 (Pa. Super. Ct. 

1993).

53 McDonough, 324 A.2d at 546, n. 6 (where the circumstances were “such that reasonable minds might differ as to 

whether the risk was peculiar” and the issue was submitted to the jury)). 

54 ECF No. 15.

55 Id. at 10.

56 Id.

57 Id.

58 Id.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 12 of 23
13

covered with twelve to eighteen inches of snow and ice.59 Fourth, Mr. Holt was 

required to perform the work without the protection of safety anchors and a 

harness.60

In determining whether Lowe’s had a duty to Mr. Holt under the Peculiar 

Risk Doctrine, this Court must apply the Ortiz test to the facts as pleaded by the 

Plaintiffs. The first prong of the test (determining whether the risk of harm was 

foreseeable to Lowe’s at the time it hired Extreme Concepts for snow removal 

services) is an issue of fact to be decided by a jury. Whether this case will be 

presented to a jury, however, depends on the second prong of the Ortiz test: 

whether the risk Mr. Holt was faced with was “different from the usual and 

ordinary risk associated with the general type of work done.”61 Mr. Holt was hired 

to provide emergency snow removal services for the removal of snow on the roof 

of the greenhouse. The general type of work done in this case is removing snow 

from the roof of a greenhouse. 

Various Pennsylvania courts have been faced with the application of the 

Peculiar Risk Doctrine to similar, if not identical, facts. In Edwards v. Franklin & 

Marshall College,

62 the plaintiff construction worker sustained serious injuries 

when he fell through a roof as he was patching a hole where a co-worker’s foot had 

 

59 Id.

60 Id.

61 Ortiz, 528 A.2d at 1358. This two-pronged test is hereinafter referred to as the Ortiz test.

62 663 A.2d 187, 188 (Pa. Super. Ct. 1995).

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 13 of 23
14

gone through the roof. The court held that the plaintiff’s employer was “in the 

business of constructing and reconstructing commercial structures” and that the 

danger of falling is apparent when engaged in that type of work. 63

The plaintiff roofer in Beil v. Telesis Construction, Inc.,

64 slipped as he was 

ascending a vertically-mounted ladder in the rain. The Supreme Court of 

Pennsylvania held that the lower court properly found that the property owner was 

not liable under the Peculiar Risk Doctrine.65 Similarly, the Court of Common 

Pleas of Bucks County held that no peculiar risk was presented when a worker 

slipped and fell after rain created a slick surface on the plywood of the steeplypitched roof.66

 

In Fedor v. Van Note-Harvey Associates,

67 the United States District Court 

for the Eastern District of Pennsylvania, after applying Pennsylvania law, held that 

the Peculiar Risk Doctrine did not apply to a case where a worker slipped and fell 

off a roof when he was reaching for an object about to fall on a woman on the 

ground below.68 The court held that it was not unexpected that a roofer might reach 

 

63 Id. at 191. In Edwards, the plaintiff’s employer had also been informed of the dangerous condition of the roof and 

the plaintiff knew of the possibility of falling through it as he was injured while patching the roof after someone had

already partially fallen through the same roof. Similarly, Extreme Concepts was instructed to search for and fix 

possible structural damage to the greenhouse. Regardless of the material of the greenhouse panels, Extreme 

Concepts was on notice of the risk that the snow storm could have damaged the structure of the greenhouse.

64 11 A.3d 456, 459 (Pa. 2011).

65 Id.

66 Sieradizki v. Realen Homes Construction Co., 1997 WL 1133510 (Pa. Ct. Comm. Pl. June 3, 1997).

67 2011 WL 1085993 (E.D. Pa. March 18, 2011).

68 Id. at *1.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 14 of 23
15

out for an object to keep it from falling during a roof repair project.69 It further held 

that what actually made the act “risky” was the failure to use adequate safety 

gear.

70

The District Court for the Eastern District of Pennsylvania similarly found 

no peculiar risk when a construction worker stepped onto a mound of snow to 

avoid a dolly and slipped, sustaining a severe head injury.71 Judge John Morgan

Davis explained his reasoning as follows:

. . . I cannot subscribe to the claim that the work in which the plaintiff 

was engaged presented a peculiar risk of harm simply because a finite 

contract deadline necessitated that the construction continue through 

the winter. To so hold would eviscerate the legal concept of 

independent contractor and detach Section 416 from its intended 

moorings . . . The precautions available to guard against the 

normal risks of working around icy surfaces are not novel. A single

tarpaulin would have provided a safe haven for the plaintiff.72

Courts in other states with a climate similar to Pennsylvania have reached 

the same conclusion. The Supreme Court of Michigan held that the defendant had 

“no reason to foresee” that a contractor “would not take appropriate precautions in 

dealing with the open and obvious conditions of the construction site” when the 

plaintiff slipped and fell off of an icy roof in the course of his employment.73 The 

court held that “[t]he mere presence of ice, snow, or frost on a sloped rooftop 

 

69 Id. at *3.

70 Id.

71 Sharkey v. Airco, Inc., 522 F. Supp. 646, 655 (E.D. Pa. 1981).

72 Id.

73 Perkoviq v. Delcor Homes-Lake Shore Pointe, Ltd., 643 N.W.2d 212, 217 (Mich. 2002).

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 15 of 23
16

generally does not create an unreasonably dangerous condition . . . that could 

reasonably be expected of possessors of land in Michigan . . .”74

Similarly, in Sievers v. McClure,

75 the plaintiff roofer fell to his death when 

he slipped on ice on a roof he was thawing with a propane torch. The Supreme 

Court of Alaska held that,

[t]he risk of harm which [the plaintiff] encountered was the risk that 

all roofers routinely face—the danger of falling off a sloped roof 

during its construction or repair. The presence of ice on the roof does 

not make the risk a peculiar one, as there is nothing abnormal about 

ice in Alaska in November. Indeed, the risk of falling from a roofing 

surface made slippery by ice, rain, oil, or loose materials is a risk with 

which the roofer must be prepared to deal every day.76

Likewise, in the case at bar, there is nothing abnormal about encountering 

snow and ice in central Pennsylvania. In fact, encountering snow and ice on the 

roof of the greenhouse was not only expected, it was a necessary climatic condition 

in order for Mr. Holt to perform the type of work which he was hired to do. The 

risk that Mr. Holt could slip on ice is a risk he encounters every time he performs 

this type of work and is by no means peculiar. Thus, the risk Mr. Holt encountered 

was not “different from the usual and ordinary risk associated with the general type 

of work done,”

77 as is necessary to apply the Peculiar Risk Doctrine under the 

second prong of the Ortiz test.

 

74 Id.

75 746 P.2d 885, 886 (Alaska 1987).

76 Id. at 890.

77 Ortiz, 528 A.2d at 1358.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 16 of 23
17

C. Duty: Restatement (Second) of Torts § 413

Plaintiffs also seek relief in their complaint under Section 413 of the 

Restatement (Second) of Torts. Section 413 varies from Sections 416 and 427, 

discussed above, in that it imputes liability on the owner of property who hires a 

contractor to do work which presents a peculiar risk and either fails to take 

reasonable precautions or fails to shift the duty of care on the contractor itself. 

Section 413 provides: 

One who employs an independent contractor to do work which the 

employer should recognize as likely to create, during its progress, a 

peculiar unreasonable risk of physical harm to others unless special 

precautions are taken, is subject to liability for physical harm caused 

to them by the absence of such precautions if the employer

 (a) fails to provide in the contract that the contractor shall take such 

precautions, or

 (b) fails to exercise reasonable care to provide in some other manner 

for the taking of such precautions.78

Comment b of Section 413 explains that the section is “concerned with 

special risks, peculiar to the work to be done, and arising out of its character, or out 

of the place where it is to be done, against which a reasonable man would 

recognize the necessity of taking special precautions.”79 Comment e further 

provides that “[t]he fact that the contract under which the work is done provides 

 

78 Restatement (Second) of Torts § 413 (emphasis added).

79 Id. at cm. b.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 17 of 23
18

that the contractor shall take the necessary special precautions does not necessarily 

relieve the employer from liability, since he may be liable under the rule stated in § 

416.”80

Lowe’s contends that the application of Section 413 is precluded in this case 

because, in contracting with Rough Brothers Inc., Extreme Concepts absorbed the 

duty to take the necessary precautions. On Page 2 of the contract between Rough 

Brothers Inc. and Extreme Concepts,81 submitted by Plaintiffs, the following 

provisions appear:

1. Contractors will follow all safety guidelines required by OSHA and 

Rough Brothers, it is the requirement of the contractor to be aware of 

all safety standards and to provide all necessary equipment to assure 

the safety of the jobsite at all times.

2. A site survey will be performed on entire store. Any other damage or 

problems to: garden center structure, mechanical systems, glazing 

system, polycarbonate, shade fabric, retractable shade system 

components, hoop covers and their components, moon ends or any 

part of any type structure not mentioned here should be indicated on 

the Rough Brothers survey form.

. . . 

5. The Terms & Conditions of Rough Brothers’ Master Subcontract 

constitute a part of this Project Subcontract and take precedence 

should conflicts or discrepancies arise.82

The Master Subcontract (hereinafter “the Subcontract”) follows. 

 

80 Id. at cm. e.

81 ECF No. 1, Exhibit A. 

82 Id.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 18 of 23
19

According to the Subcontract, Extreme Concepts was “responsible for 

continuous inspection of [its] work to assure its safety.”83 Extreme Concepts was 

also to “require and be responsible for safety compliance on the part of its agents” 

and “review all job conditions and thoroughly inspect all prior work of Rough 

Brothers, Inc. and others” prior to commencing work.84

The Subcontract further specified that if any unacceptable conditions were 

found, Extreme Concepts was to provide written notice to Rough Brothers, Inc.85 If 

no notice was provided, Extreme Concepts was deemed “to have fully accepted the 

conditions” and would be “fully responsible for any and all expenses, losses or 

damages resulting from said conditions.”86 Extreme Concepts was to “take all 

reasonable safety precautions with respect to its work . . . [and] comply with all 

safety measures required by the General Contract Documents and with all 

applicable laws, ordinances, rules, regulations and order of any public authority for 

the safety of persons or property . . .”87

The Plaintiffs argue that these provisions did not show that Lowe’s 

contracted for any special precautions to be taken for emergency snow removal. 

According to Section 413 of Restatement (Second), however, special precautions 

are only required when there exists a “peculiar unreasonable risk of physical harm” 

 

83 ECF No. 1-1 at § 8.3.

84 Id. at § 8.18.

85 Id.

86 Id.

87 Id. at § 8.20.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 19 of 23
20

that is a “special danger . . . arising out of the particular situation.”88 As this Court 

has found no peculiar risk, Plaintiffs’ claim under Section 413 of the Restatement 

(Second) of Torts must be dismissed.

Lowe’s Motion to Dismiss Must Be Granted Because Causation for Plaintiffs 

Injuries is Not Attributable to Lowe’s

Under a claim of ordinary negligence, a court must also find a causal 

connection between the breach of duty and the resulting injury.

89 Plaintiffs aver in 

their complaint, and further explain in their brief in opposition to Lowe’s motion to 

dismiss, that Mr. Holt slipped on ice while he was standing on the drainage 

channel adjacent to the roof. Plaintiffs argue that Lowe’s, in breaking down each of 

the contributing circumstances to Mr. Holt’s fall, ignores that it was “the totality of 

the specific circumstances” that caused this regrettable accident.90

The type or condition of the panels on the roof of this particular greenhouse, 

however, does not change the outcome of this case. It was the slip on the ice, not 

the condition of the panels on the roof, which was the cause of the accident. Had 

Mr. Holt been positioned closer to the edge of the roof, slipped on ice, and fallen 

 

88 Restatement (Second) of Torts § 413, § 413 cmt. b.

89 Vanchure v. Wegmans Food Markets, Inc., 2014 WL 1746844, *4 (M.D. Pa. May 1, 2014) (citing Nw. Mut. Life 

Ins. Co. v. Babayan, 430 F.3d 121, 139 (3d Cir. 2005)).

90 ECF No. 15 at 12.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 20 of 23
21

over the edge and not on top of the panel of the greenhouse, Mr. Holt would have, 

presumably, suffered the same unfortunate fate.91

It seems evident that the use of appropriate safety gear could have prevented 

this horrific accident. The Holt’s initial complaint alleged multiple times that “Mr. 

Holt and his team were prohibited from securing themselves to the roofline with 

standard safety anchors and harnesses.”92 None of the allegations, however, clearly 

stated who prohibited Mr. Holt from using the safety gear. In the brief in 

opposition to Lowe’s motion to dismiss, however, the Plaintiffs state that Extreme 

Concepts, Mr. Holt’s employer, sent him onto the roof without proper safety gear 

and that Lowe’s should be held vicariously liable for Extreme Concepts outrageous 

conduct.93

This Court cannot find that the Peculiar Risk Doctrine applies based on “the 

violation of safety conditions alone.”94 This is because “many, if not most, 

industrial actions result from a failure to follow the safety regulations of either the 

state or the federal government.”95

 

91 Additionally, in contracting for the services with Rough Brothers Inc., Lowe’s requested that the subcontractor 

“[s]urvey the entire garden center for all damage” and [n]ote how many panels were cut, and how many panels need 

replac[ing].” ECF No. 1, Exhibit A at 2. Lowe’s also asked them to “secure all hanging shade and any structure 

damage and make the store safe for customers and associates.” Id. Extreme Concepts was, therefore, on notice that 

there could be damage to the roof, regardless of the material of which the roof was made.

92 ECF No. 1, Exhibit A at ¶ 29; see also ECF No. 1, Exhibit A at ¶¶ 35, 39, 48b., 53, 66, 67, 71, 72. 

93 ECF No. 1, Exhibit A at § B.

94 Lorah, 622 A.2d at 1386; see also Olin, 119 F. Supp. 2d at 471; see also Motter, 680 A.2d at 892.

95 Lorah, 622 A.2d at 1386 (citing Peffer v. Penn 21 Assoc., 594 A.2d 711, 713 (Pa. Super. Ct. 1991).

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 21 of 23
22

Moreover, the Subcontract between Rough Brothers and Extreme Concepts 

clearly states that Extreme Concepts will “take all reasonable safety precautions 

with respect to its work . . . [and] comply with all [required] safety measures . . .”96

Extreme Concepts or Rough Brothers Inc. would be much better able than Lowe’s 

“to make sure the work is performed at the safety level appropriate for the 

project.”97 This Court agrees with the Superior Court of Pennsylvania when it 

expressed: 

“[s]uffice it to say that we would find odd a doctrine of law that absolves an 

employer of an independent contractor from ordinary negligence on the part 

of the contractor or his servant, yet holds the same employer vicariously 

liable for either of those actors' gross negligence.”98

Consequently, this Court finds that the cause of the harm in this case was the slip 

on ice and the lack of use of appropriate safety gear. 

This Court recognizes that the above cited cases were decided on Rule 56 

motions for summary judgment, after the parties engaged in discovery, unlike the 

instant case. Nevertheless, this Court must take all of the factual allegations in the 

Plaintiffs’ complaint as true,99 and decide, based on the facts presented, whether 

the Plaintiffs’ compliant states a plausible claim for relief.100

 

96 ECF No. 1-1 at § 8.20.

97 Lorah, 622 A.2d at 1387.

98 Id.

99 Hishon, 467 U.S. at 73.

100 Twombly, 550 U.S. at 561.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 22 of 23
23

The facts as alleged, however, are clear. This Court is unable to find that a 

peculiar risk existed in this case or that Lowe’s is liable in some fashion for the 

negligent actions of Extreme Concepts. Lowe’s duty to Mr. Holt as its business 

invitee was discharged appropriately when it hired Extreme Concepts for snow 

removal services and requested that Extreme Concepts survey and repair any 

structural damage found. Extreme Concepts was in the best position to recognize 

the risk that its employees could slip on ice in the course of their snow removal 

work and ensure that safety regulations were being adhered to in order to protect 

from that risk. 

IV. CONCLUSION

In accordance with the foregoing analysis, Lowe’s motion to dismiss101 is 

granted and this case is dismissed with prejudice.

An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

 

101 ECF No. 13.

Case 4:15-cv-01728-MWB Document 26 Filed 02/10/16 Page 23 of 23