Dunkle v. Middleburg Municipal Authority

In Dunkle v. Middleburg Municipal Authority, 842 A.2d 477, 481 (Pa. Cmwlth. 2004), the parents of William K. Dunkle, the decedent, appealed from the trial court's order granting summary judgment for the municipal authority in a wrongful death action. Dunkle was asphyxiated when a sewer trench he was working on while employed by Gutelius Excavating, Inc. collapsed and buried him. The authority had hired Gutelius to excavate the trench. Our court upheld the trial court's grant of summary judgment stating that "one who employs an independent contractor is not liable for physical harm caused by a negligent act or omission of the contractor." Id. at 481. The Court noted that the exception to this general rule, regarding special dangers and peculiar risks, was not applicable because the excavation of the sewer trench was not of such a peculiar risk to invoke the exception. The Court stated that "here, the type of trenching contemplated in the subcontract presented no peculiar risk or inherent danger. Rather, the risk or danger arose out of a failure to use standard precautions." . Id. at 483. The Court then concluded that, because the type of trenching undertaken did not pose a peculiar risk or danger, the authority, as the employer, could not be held vicariously liable for the tortious conduct of its contractors. In Dunkle, the Court cited the following test for determining whether a particular activity presented a special danger or peculiar risk: (1) Was the risk foreseeable to the employer of the independent contractor at the time the contract was executed?; and (2) Was the risk different from the usual and ordinary risk associated with the general type of work done, i.e., does the specific project or task chosen by the employer involve circumstances that were substantially out-of-the-ordinary? Id. at 482. The Court concluded that the trench digging operations in Dunkle failed to meet the test and noted that the "peculiar risk must be one not created solely by the contractor's negligence in performing the operative details of the work.". Id.