[J-66-2022] [MO: Todd, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

DAVID L. BROWN, INDIVIDUALLY AND 

AS EXECUTOR OF THE ESTATE OF 

KATHRYN A. BROWN, DECEASED

v.

CITY OF OIL CITY

v.

FRED L. BURNS, INC.

v.

SCOTT AMSDELL, INDIVIDUALLY, AND 

MACON, INC., AND HAROLD BEST, 

INDIVIDUALLY, AND STRUXURES, LLC

APPEAL OF: HAROLD BEST, 

INDIVIDUALLY, STRUXURES, LLC, AND 

FRED L. BURNS, INC.

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No. 6 WAP 2022

Appeal from the Order of the 

Commonwealth Court entered 

September 1, 2021 at No. 337 CD 

2020, reversing the Order of the 

Court of Common Pleas of Venango 

County entered February 28, 2020 at 

No. 589-2016 and remanding.

ARGUED: October 26, 2022

DISSENTING OPINION

JUSTICE MUNDY DECIDED: MAY 16, 2023

I agree with much of the Majority’s exposition of the analytical legal background 

undergirding the interpretive question at hand but disagree with its conclusions respecting 

that interpretation. That is, as more fully explained herein, I interpret the relevant sections 

of the Restatement to indicate the latency of a dangerous condition is an integral element 
[J-66-2022] [MO: Todd, C.J.] - 2

of foreseeability, which in turn is a prerequisite to a contractor’s liability to third parties. 

Of note, as acknowledged by all parties, the relevant sections of the Restatement 

(Second) of Torts employ language this Court adopted through the Restatement (First) of 

Torts in Prost v. Caldwell Stores, 187 A.2d 273 (Pa. 1963). The source of the principles 

espoused in these sections stem from the seminal case of MacPherson v. Buick Motor 

Company, 217 N.Y. 382 (1916). The central principal advanced in MacPherson was that 

under certain circumstances, the absence of a contractual relationship, duty, or privity will 

not preclude liability of a manufacturer of defective chattels for injuries incurred by an 

ultimate user of the chattel. Two of those circumstances, which are not at issue in this 

appeal, include that the manufacturer knows or has reason to know of the dangerous 

condition, and that the dangerous condition resulted from its lack of care or negligence.

MacPherson, supra at 391.

1

 In this case, we consider whether a third condition, that it is 

foreseeable by the contractor that the injured party as a potential user/possessor could 

be harmed by the dangerous defect, is also required to predicate liability. We further 

consider the role the latency or patency of the dangerous condition has on any 

foreseeability requirement. The Majority concludes that latency is not an essential 

 

1 The Majority recognizes that the parties do dispute when the work was completed and 

if it was accepted by Oil City, but that those factual disputes do not impact the issue 

accepted for review. Maj. Op. at 9 n.6. It is unclear from the agreed facts whether 

Appellants knew of the defect and dangerous condition, or should have known, due to its 

negligent design or execution of its repairs and reconstruction of the stairs at the time it 

relinquished possession and control to Oil City. The defect apparently manifested itself 

within a short time, and Appellants were so advised. It is upon this basis that the question 

of knowledge and our current issue respecting the role of latency/patency in foreseeability

are predicated. However, it begs the question of when the issues of knowledge of defect 

and dangerous condition, foreseeability, and latency/patency are to be considered. See 

e.g., Sanchez v. Swinerton & Walberg Co., 47 Cal.App.4th 1461, 1471 (opining an initially 

latent defect becomes patent upon discovery). For the purposes of this case, we accept 

the trial court’s finding that the dangerous condition was patent, and we focus on whether 

latency is a necessary component of foreseeability and thus a legal requirement to extend 

a contractor’s liability to third parties under the Restatement.
[J-66-2022] [MO: Todd, C.J.] - 3

element of foreseeability. Maj. Op. at 2. I disagree. The law of this Commonwealth does 

not impose liability upon possessors of land for injuries to invitees from open and obvious 

dangerous conditions. See discussion of Carrender v. Fritterer, 469 A.2d 120 (1983)

infra. Neither does it impose upon contractors any greater obligation to foresee that an 

injured third party will ignore such open and obvious dangers. 

Section 385 of the Restatement (Second) of Torts addresses the liability of a party 

erecting or repairing a structure on behalf of a possessor of land after the work has been 

completed and accepted. The section states that the rules are the same as those for 

manufacturers and independent contractors. Those rules are stated in Sections 394-398 

and 403-404 respectively.2 

Thus, as the Majority explains, it is the language and import of Sections 394 and 

398 that we must consider in answering the question presented. I set forth those sections 

herein. 

§ 394 Chattel Known to be Dangerous

The manufacturer of a chattel which he knows or has reason

to know to be, or to be likely to be, dangerous for use is subject

to the liability of a supplier of chattels with such knowledge.

Restatement (Second) of Torts § 388 (1965).

§ 388 Chattel Known to be Dangerous for Intended Use

One who supplies directly or through a third person a chattel

for another to use is subject to liability to those whom the

supplier should expect to use the chattel with the consent of

the other or to be endangered by its probable use, for physical

harm caused by the use of the chattel in the manner for which

and by a person for whose use it is supplied, if the supplier

 

2 Section 404, in turn, refers to the rules pertaining to manufacturers of chattels, i.e.

sections 394-398.
[J-66-2022] [MO: Todd, C.J.] - 4

(a) knows or has reason to know that the chattel is or is likely

to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the

chattel is supplied will realize its dangerous condition,

and

(c) fails to exercise reasonable care to inform them of its

dangerous condition or of the facts which make it likely to

be dangerous.

Id. § 388 (emphasis added).

§ 389 Chattel Unlikely to be made Safe for Use

One who supplies directly or through a third person a chattel 

for another’s use, knowing or having reason to know that the 

chattel is unlikely to be made reasonably safe before being 

put to a use which the supplier should expect it to be put, is 

subject to liability for physical harm caused by such use to 

those whom the supplier should expect to use the chattel or 

to be endangered by its probable use, and who are ignorant 

of the dangerous character of the chattel or whose 

knowledge thereof does not make them contributorily 

negligent, although the supplier informed the other for whose 

use the chattel is supplied of its dangerous character.

Id. § 389 (emphasis added).

The highlighted language of Sections 388(b) and 389, in my view, makes clear that 

latency of the dangerous condition is a third predicate condition to imposing liability 

outside of the privity relationships bypassed by the reasoning in MacPherson. The trial 

court’s findings in this matter established that the danger at issue was known and obvious 

to a degree that reasonable minds could not differ, making the issue appropriate for 

summary judgment. Trial Ct. Op., 10/25/19, at 2-3; Trial Ct. Op., 5/13/20, at 9-10. For 

the purposes of this appeal, we must accept that finding.3

 

3 As the trial court noted, in certain cases it may be for a jury to decide whether a 

dangerous condition is patent or latent. Trial Ct. Op., 5/13/20, at 9.
[J-66-2022] [MO: Todd, C.J.] - 5

The phrasing of the question accepted for review focuses on the knowledge of the 

possessor of land, Oil City. 4 However, it is not merely the subjective knowledge of Oil 

City that is implicated here, nor does the Majority constrain its analysis and holding in this 

regard. The fact that the danger was found to be obvious implicates the knowledge of 

the third party as per the emphasized language in the above cited sections. As the 

Majority explains, part of the disparate interpretation given to this issue by the Superior 

and Commonwealth Courts5 stems from the language of comment c to Section 385.

A manufacturer of a chattel who puts it upon the market 

knowing it to be dangerous and having no reason to expect 

that those who use it will realize its actual condition is 

liable for physical harm caused by its use (see § 394). As the 

liability of a servant or an independent contractor who erects 

a structure upon land or otherwise changes its physical 

condition is determined by the same rules as those which 

determine the liability of a manufacturer of a chattel, it follows 

that such a servant or contractor who turns over the land with 

knowledge that his work has made it dangerous in a manner 

unlikely to be discovered by the possessor is subject to 

liability both to the possessor, and to those who come upon 

the land with the consent of the possessor or who are likely to 

be in its vicinity.

Restatement (Second) of Torts § 385, cmt. c (emphasis added).

As the Majority explains, interpretation of the language of the portions of 

Restatements adopted by this Court as accurate pronouncements of the common law in 

this Commonwealth are not subject to statutory interpretation rules but dependent on the 

purpose, reasoning, and policy considerations attending their adoption. Tincher v. 

 

4 The question reads as follows: “Whether an out-of-possession contractor cannot be 

subject to liability under Section 385 of the Restatement of Torts for injuries to third-parties 

where the dangerous condition of the structure erected by the contractor is well-known 

to the possessor of land?” 

5 Gilbert v. Consolidated Rail Corp., 623 A.2d 873 (Pa. Cmwlth. 1993); and Gresik v. Pa. 

Partners, L.P., 989 A.2d 344 (Pa. Super. 2009) and their progeny. The Majority Opinion 

provides a thorough summary of these holdings, so I do not repeat those analyses here. 
[J-66-2022] [MO: Todd, C.J.] - 6

Omega Flex, Inc., 104 A.3d 328, 353-54 (Pa. 2014). In evaluating this purpose, 

reasoning, and policy, the Majority emphasizes the prerequisite conditions mentioned 

above, i.e., knowledge of the dangerous condition and the lack of care or negligence in

creating it. Where my view differs from the Majority is in the contours it creates concerning 

foreseeability. 

The Majority interprets the language of Section 388(b), not as one of a list of three 

preconditions for liability, but as a factor, if present after potential liability has been 

established by virtue of negligence and knowledge, that triggers the additional duty to 

warn. Maj. Op. at 29. Similarly, the Majority interprets Section 389 as rendering 

latency/patency a non-factor to third party liability because it states that warning of the 

dangerous character will not excuse liability to those still ignorant of that dangerous 

character. Id. I find these interpretations strained in terms of the plain meaning of the 

language, and ultimately inconsistent with the reasoning behind our adoption of the 

Restatement sections involved.6

I also disagree with the Majority’s reliance on Section 395 as applicable to this 

case because it pertains to a chattel inherently dangerous if not properly made. Section 

395 speaks to a manufacturer’s knowledge of a dangerous condition, not foreseeability. 

 

6 The Majority’s response that the issue of warnings as implicated in sections 388(c) and 

389 address latent dangerous conditions and are not at issue in this case is one with 

which I agree. Maj. Op. at 30 n. 18. Respectfully, however, that response misses the 

point. First, those sections address “suppliers,” not necessarily the 

manufacturer/contractor whose negligence is at issue and where the imposition of liability 

to third parties is at issue. The fact that there is a duty to warn of a latent dangerous 

condition of which the supplier is aware does not by some implication extend liability for 

patent dangerous conditions as that patency affects the manufacturer/contractor’s 

foreseeability requirement. In some cases, the issue of a manufacturer or contractor 

warning of latent dangerous conditions may concern a duty of the manufacturer to the 

party with which it has privity, and thus in turn affect the relative liability between a 

manufacturer and a warned or unwarned supplier to an injured third party. But again, that 

is not implicated in this case where the dangerous condition was found to be obvious as 

a matter of law by the trial court. See n.7 infra.
[J-66-2022] [MO: Todd, C.J.] - 7

For inherently dangerous products, the knowledge of the dangerous condition is imputed 

to the manufacturer when it knows that product is not properly made, i.e., “he should 

recognize [the lack of reasonable care] as involving an unreasonable risk . . .” 

Restatement (Second) of Torts § 395. A defect in making a product that is not inherently 

dangerous will not necessarily create a dangerous condition. Only if a manufacturer is 

aware of a dangerous condition as opposed to a mere defect will liability to third parties 

attach. For inherently dangerous products, it is enough that the manufacturer knows it 

was defectively made. Nowhere in the case below did any party rely on the inherent 

dangerousness of the type of construction at issue. In any event, Section 395 does not 

negate the foreseeability requirements attendant to the latency/patency issue at hand

whatever the basis for the contractor’s knowledge of the dangerous condition may be.

As noted, the genesis of the principles implicated by the issues in this case are 

traced to Judge Cardozo’s opinion in MacPherson where he stated:

[T]he presence of a known danger, attendant upon a known 

use, makes vigilance a duty. We have put aside the notion 

that the duty to safeguard life and limb, when the 

consequences of negligence may be foreseen, grows out 

of contract and nothing else. We have put the source of the 

obligation where it ought to be. We have put its source in the 

law.

MacPherson, supra at 390 (emphasis added).

The issue of latency/patency of the known dangerous condition is grounded in this 

requirement of foreseeability. Where a known, negligently-caused, dangerous condition 

is allowed to be exposed to expected users, a manufacturer’s liability will extend to those 

users where such harm is foreseeable. Dispensing with privity as a defense in these 

cases recognized that at the time of injury, the manufacturer was not in a position to 

specifically correct, warn, or mitigate the danger posed with respect to the injured party. 

Yet, where such injury was foreseeable because the dangerous condition caused by and 
[J-66-2022] [MO: Todd, C.J.] - 8

known to the manufacturer (or in the case of Section 395, inherent dangerousness of an 

improperly made chattel), was unlikely to be appreciated or realized by a foreseeable 

user, that inability to correct or mitigate would not preclude liability based on a more 

general duty than that premised on contractual duty or privity. The principles attendant 

to the MacPherson decision and its articulation in the Restatement did not impose 

foreseeability of injury where the dangerous condition was readily apparent, and any 

efforts or obligations of mitigation or avoidance of that danger was in the hands of others. 

MacPherson involved a defective wheel in an inherently dangerous product, which was 

not apparent to foreseeable users. Id. at 386. Accordingly, I disagree that “neither 

[Section 395] nor the MacPherson decision on which it is based, limits a manufacturer’s 

liability to only chattels with latent defects.” Maj. Slip Op. at 30. To the contrary, it is the 

latency of the dangerous condition that contributes to the foreseeability of harm to third 

parties. 

Additionally, the Majority’s position is antithetical to the law of this Commonwealth 

regarding the liability of a possessor of land to invitees upon the premises. In Carrender 

v. Fritterer, 469 A.2d 120 (1983) this court held the following.

Thus, as is made clear by section 343A of the Restatement,

“[a] possessor of land is not liable to his invitees 

for physical harm caused to them by any activity 

or condition on the land whose danger is known 

or obvious to them, unless the possessor should 

anticipate the harm despite such knowledge or 

obviousness.”

Restatement [(Second) of Torts] § 343A. See Atkins v. Urban

Redevelopment Auth. of Pittsburgh, 489 Pa. 344, 352–53, 

414 A.2d 100, 104 (1980) (“the law of Pennsylvania does not 

impose liability if it is reasonable for the possessor to believe 

that the dangerous condition would be obvious to and 

discovered by his invitee”); Palenscar v. Michael J. Bobb, Inc.,

439 Pa. 101, 106–07, 266 A.2d 478, 480, 483 (1970) (same); 
[J-66-2022] [MO: Todd, C.J.] - 9

Repyneck v. Tarantino, 415 Pa. 92, 95, 202 A.2d 105, 107 

(1964) (same); Kubacki v. Citizens Water Co., 403 Pa. 472, 

170 A.2d 349 (1961) (same). A danger is deemed to be 

“obvious” when “both the condition and the risk are apparent 

to and would be recognized by a reasonable man, in the 

position of the visitor, exercising normal perception, 

intelligence, and judgment.” Restatement, supra, § 343A 

comment b. For a danger to be “known,” it must “not only be 

known to exist, but ... also be recognized that it is dangerous 

and the probability and gravity of the threatened harm must 

be appreciated.” Id. Although the question of whether a 

danger was known or obvious is usually a question of fact for 

the jury, the question may be decided by the court where 

reasonable minds could not differ as to the conclusion. See 

Restatement, supra, § 328B comments c and d.

Carrender v. Fitterer, 469 A.2d 120, 123–24 (Pa. 1983).

7

 The effect of the Majority’s 

holding is to impose a more stringent foreseeability burden on a contractor than a 

possessor of the land. 

Several jurisdictions have reached similar conclusions to that which the trial court 

adhered in this case. In Sanchez, supra, the California court concluded the dangerous 

condition the contractor created in allowing pooling of water on uncovered landings and 

stairwells was patent as a matter of law and “[t]he obvious nature of the defect would 

allow the owner and users to take steps to remedy the condition or to take precautions 

against injury.” Sanchez, supra at 1471. “Inasmuch as the defective condition that was 

reasonably dangerous to life and limb was not latent, the contractor and subcontractor 

 

7 The Majority contends “the principles of Carrender remain relevant factors to be 

considered by the finder of fact in its ultimate apportionment of liability.” Maj. Op. at 36 

n.20. However, while the Court in Carrender stated, “Although the question of whether a 

danger was known or obvious is usually a question of fact for the jury, the question may 

be decided by the court where reasonable minds could not differ as to the conclusion.” 

Carrender supra at 124. As noted earlier, the trial court in this case made such a finding 

in its grant of summary judgment. The Carrender Court also explained Section 343A 

speaks to a possessor’s lack of duty owed to an invitee for an obvious dangerous 

condition, and not to any basis for apportionment of fault under assumption of the risk or 

comparative principles. Id. at 125.
[J-66-2022] [MO: Todd, C.J.] - 10

had no liability to a third person injured thereby after the owner’s acceptance of the 

structure.” Id. The Maryland Supreme Court in dicta stated:

In following the modern trend, we hold that privity is not an 

absolute prerequisite to the existence of a tort duty. The duty 

of the architects and the builders in this case, to use due care 

in the design, inspection, and construction of this 

condominium extended to those persons foreseeably

subjected to the risk of personal injury created, as here, by a 

latent and unreasonably dangerous condition resulting from 

their negligence. 

Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 517 

A.2d 336, 343–44 (Md. 1986) (emphasis added). Finally, in applying Rhode Island law,

the U.S. District Court, D. Rhode Island, held:

Moreover, the strongest case for the rejection of the rule of 

nonliability is presented where, as here, the negligently 

created defect is latent and concealed, and renders the 

work done imminently dangerous to third persons whose 

subsequent use of the premises should reasonably have been 

foreseen.

Pastorelli v. Associated Engineers, Inc., 176 F.Supp. 159, 167 (D.C.R.I. 1959) (emphasis 

added). While these decisions are not binding upon this Court and, in some instances,

involve dicta, they do illustrate the nexus between latency of a dangerous condition and 

the foreseeability by a contractor of harm occurring from its negligently created dangerous 

condition. The duty imposed upon manufacturers, and by extension contractors, to third 

parties by MacPherson and the Restatement of Torts requires three elements; the 

negligent cause of a dangerous condition, the knowledge the dangerous condition exists, 

and the foreseeability of harm, which includes the question of whether the dangerous 

condition is patent or latent. In this case, the trial court determined the dangerous 

condition was patent as a matter of law, a finding we must accept in this appeal, meaning 

the requirement of foreseeability has not been established. A manufacturer or contractor 

is not expected to foresee that third parties will ignore patent dangers to their own 
[J-66-2022] [MO: Todd, C.J.] - 11

detriment. The practical effect of the Majority’s position is to make manufacturers and 

contractors strictly liable under conditions where they are not in a position to correct or

ameliorate against the dangers posed while possessors and third parties need not take 

any precautions against dangers of which they are aware. Because I do not believe this 

was the intent of MacPherson or the articulation of its principles through the Restatement 

as adopted in this Commonwealth, I respectfully dissent.