Negligence Action Against the Municipal Authority That Had Hired the Employer of a Worker Who Died
In Dunkle v. Middleburg Municipal Authority, 842 A.2d 477 (Pa. Cmwlth. 2004), appeal denied, 580 Pa. 708, 860 A.2d 491 (2004), the Court noted that the Pennsylvania test for applying the peculiar risk exception requires that the risk must be one caused by something other than the contractor's negligence.
In Dunkle, the parents of a worker who was killed by the collapse of a sewer trench brought a negligence action against the municipal authority that had hired the decedent's employer to excavate the trench.
The decedent had been working in a deep trench excavated in shale; a trench box had not been installed and no other precautions had been taken.
The plaintiffs argued that working in a trench excavated in unstable shale presented a special danger or peculiar risk.
The Court disagreed, reasoning that working in a sewer trench in stable or unstable soil was nothing more than a common routine worksite procedure, requiring protective measures, such as a trench box, to support the walls.
To accept the argument that all excavation work involved a special danger or peculiar risk would render the terms "special danger" or "peculiar risk" meaningless. Dunkle, 842 A.2d at 484.
The Court explained that [in order to constitute a special danger or peculiar risk, a plaintiff would have to establish that the risk is different from the usual and ordinary risk associated with the general type of work.
For example, excavating a trench next to an abandoned mine shaft could cause an explosion or instant flood, the kind of peculiar risk intended by the RESTATEMENT exceptions. Id. at 484-485.