Brown v. City of Oil City, 2023 Pa. LEXIS 681 (S. Ct. May 16, 2023) (Todd, C.J.). In this appeal, our Court is asked to determine whether Section 385 of the Restatement (Second) of Torts imposes liability on a contractor to a third party whenever the contractor, during the course of his work for a possessor of land, creates a dangerous condition on the land that injures the third party, even though, at the time of the injury, the contractor was no longer in possession of the land, and the possessor was aware of the dangerous condition. For the reasons that follow, we conclude, as did the Commonwealth Court below, that a contractor may be subjected to liability under Section 385 in such circumstances. Accordingly, we affirm the judgment of the Commonwealth Court. Section 385, entitled, “Persons Creating Artificial Conditions on Land on Behalf of Possessor: Physical Harm Caused After Work has been Accepted,” provides, in full:
One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.
Restatement (Second) of Torts § 385 (1965). Our Court has established that Section 385 is applicable to tort cases within the jurisdiction of the courts of our Commonwealth. Gresik v. Pa. Partners, L.P., 613 Pa. 303, 33 A.3d 594, 599 (Pa. 2011) (“Gresik II”). In sum, we conclude that a contractor’s liability under Section 385 does not hinge on whether the defective condition it caused is latent or patent. Rather, like the Commonwealth Court did below, and previously in Gilbert, we interpret Section 385 and comment c thereto as imposing potential liability on contractors to third persons for all defective conditions of structures on land which they are responsible for creating through their repair work. Similarly, we conclude that comment c serves only to clarify that the persons to whom a contractor is liable under Section 385 includes the possessor of land, when the dangerous condition is not readily discoverable by the possessor. Accordingly, we reject the contention that a contractor’s liability to third persons is limited to only those situations in which he has created a dangerous condition that is not readily apparent or obvious. Indeed, we find that a contrary conclusion would disregard and undermine the bedrock legal principle and policy on which Section 385 rests: that a contractor has a social duty “to take thought and have a care lest his action result in injuries to others.” Prost, 187 A.2d at 276 (quoting Bisson, 170 A. at 143). This social duty “the law recognizes and enforces, and for any injury resulting from any person’s lack of elementary forethought, the law holds that person accountable.” A possessor of land, like a contractor, also has a social duty to invitees onto his or her land to “keep the premises in a reasonably safe condition.” Watkins v. Sharon Aerie No. 327 Fraternal Order of Eagles, 423 Pa. 396, 223 A.2d 742, 743 (Pa. 1966). Our holding today does not alter a possessor of land’s potential liability to third parties for injuries caused by a dangerous condition existing on the land, and, therefore, does not preclude the prospect of a possessor being found jointly liable with a contractor for the harm a dangerous condition caused to third parties. See Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 371 (Pa. 1951) (“The universal rule is that when two or more contribute by their wrongdoing to the injury of another, the injured party may recover from all of them in a joint action or he may pursue any one of them and recover from him.”). Rather, we agree with the New Jersey Supreme Court that inaction by the owner of property upon becoming aware of a dangerous condition created by a contractor’s work arguably “adds him as another possible tortfeasor.” Totten, 245 A.2d at 6. Based on the foregoing discussion, we hold that a contractor who has created a dangerous condition through work performed for a possessor of land may be liable under Section 385 to all persons suffering injuries caused by the dangerous condition, even if that condition is obvious or apparent in nature. As the Commonwealth Court came to the same conclusion, we affirm. Order affirmed.
