[ J

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- 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 r emanding.

ARGUED: October 26, 2022

DISSENTING O PINION

JUSTICE MUNDY DECIDED: MAY 16, 2023
I agree with much of the M ajority’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

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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 s tem 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 know s or ha s 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 dange rous 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 an d 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, i t begs the question of when the issues of knowledge of defect and d angerous condition, foreseeability, and latency/patency are to be considered. See e.g., Sanchez v. Swinerton & Walberg Co. , 47 Cal.App.4 th 1461, 1471 (opining an initially latent defect becomes patent upon discovery). For the purposes of this case

, we ac cept 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

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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 conditi ons. 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 danger s

.
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 independe nt contractors. Those rules are stated in S ections 394

- 398

and 403

- 40 4 respectively. 2

Thus, as the Majority explains

, it is the language and import of S ections 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, dange rous 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 pe rson for whose use it is supplied, if the supplier

2 Sec tion 404, in turn, refers to the rules pertaining to manufacturers of chattels, i.e. section s 394

- 398.[ J

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- 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 Section s 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 obv ious

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

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- 5

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

possessor of land, Oil City. 4 However, i t 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 Courts 5 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 liab le 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 liabil ity 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 contrac tor 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 t hese holdings, so I do not repeat those analyses here.[ J

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Omega Flex

, Inc. , 104 A.3d 328, 353

- 54 (Pa. 2014). In evaluating this purpose,

reasoning

, an d 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 ren dering

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 th ese interpretation s 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 perta ins to a chattel inherently dangerous if not properly made. Section

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

.

6 T he 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 on e with which I agree

. Maj. Op. at 30 n. 18. R espectfully

, 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, t he 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 manufactur er 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

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F or inherently dangerous products

, the knowledge of the dangerous condition is imputed

to the manuf acturer 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 w ill 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 l atency/ p atency issue at ha nd

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

, s upra at 390 (emphasis added)

. The issue of latency/patency of the known dangerous condition is gr ounded in this

requirement of foreseeability. Where a known, neglig ently

- 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

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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 premise d 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 mit igation 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 “ n either

[ Section 395 ] nor th e 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 thir d

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 shou ld 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. Bo bb, Inc., 439 Pa. 101, 106

– 07, 266 A.2d 478, 480, 483 (1970) (same);[ J

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- 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 “b oth 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 mu st “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 Sanch ez , 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 princi ples 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, t he trial court in this case made such a finding in its grant of summary judgment. The Carrender Court also explained S ection 343A speaks to a possessor’s lack of duty owed to an invitee for an obvious dangerous condition

, and not to a ny basis for apportio nment of fault under assumption of the risk or comparative principles. Id. at 125

.[ J

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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 unre asonably 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 Co urt, 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 t hese decisions are not binding upon this Court and, in some instances

,
invol ve 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 manufactu r ers , 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 includ es th e 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 b een established. A manufacturer or contractor

is not expected to foresee that third parties will ignore patent dangers to their own[ J

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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 o r
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 MacPhe rson or the articulation of its principles through the Restatement

as adopted in this Commonwealth , I respectfully dissent.